Lyn H.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Oct 17, 2018

0120170030 (E.E.O.C. Oct. 17, 2018)

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

Lyn H.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.

Appeal No. 0120170030

Agency No. 15-56-78

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 August 1, 2016, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Representative, GS-0301-12, at the Agency’s Customer Contact Center Branch, Public Search
Services Division, Office of Chief Information Officer facility in Alexandria, Virginia.
Complainant reported that since July 2014, she has experienced complications from diabetes and
hypertension, which impact her ability to think and concentrate. She added that her impairments
cause upset stomach, nausea, extreme anxiety, excessive urination, and kidney malfunctioning.
Complainant was hired under the Schedule A special hiring authority, a hiring flexibility managers
can use to hire applicants with disabilities, and began working at the Agency on May 4, 2015.
Complainant’s supervisor (S1) was the Branch Chief for the Agency’s Customer Contact Center.

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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On May 6, 2015, Complainant made a request to participate in the Agency’s Increased Flextime
Program (IFP) through a conversation with S1, which was denied. Complainant made additional
requests for a flexible schedule through July 2015, but each of her requests was denied.
Management explained to Complainant that a flexible schedule was not compatible with the
Agency’s operational needs and Complainant’s level of training.

On May 20, 2015, Complainant requested to telework through a conversation with her supervisor.
S1 denied the request with the explanation that Complainant was ineligible to participate in the
Agency’s telework program because she had not been with the Agency for at least two years.

Prior to her service with the Agency, Complainant worked for the federal government at the
Internal Revenue Service (IRS) and the Federal Deposit Insurance Corporation (FDIC). When
Complainant started at the Agency, she believed that she had 16 hours of sick leave from the IRS
and 20 hours of sick leave from the FDIC. The Agency requested Complainant’s Official
Personnel File (OPF) in May 2015. Complainant’s OPF was not received for further processing
until August 2015, and was not available for Agency adjustments until November 2015.

On July 15, 2015, Complainant became ill at work and did not work from July 15, 2015 through
July 22, 2015. On July 24, 2015, Complainant received a letter from management outlining her
options regarding her absence. On July 22, 2015 and August 17, 2015, Complainant took a
combined 10.5 hours of leave without pay (LWOP) because the Agency’s records did not indicate
that she had accrued leave sufficient to cover the balance she had taken.

On or about July 16, 2015, Complainant requested a flexible schedule through the formal
reasonable accommodation process. Specifically, Complainant requested a flexible, compressed
schedule. According to Complainant, a flexible schedule would allow her to better control her
symptoms and miss less time from work. On September 14, 2015, Complainant’s reasonable
accommodation request was approved and she was granted a compressed work schedule that
allowed for her to take one day off every other week.

On November 6, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (diabetes, hypertension, and anxiety) and in
reprisal for prior protected EEO activity when:

1. Beginning May 6, 2015, through February 12, 2016, Complainant’s request for a
reasonable accommodation in the form of a flexible schedule was denied;

2. Beginning May 20, 2015, through February 12, 2016, Complainant’s request for a
reasonable accommodation in the form of telework was denied;

3. Beginning July 13, 2015, through February 12, 2016, Complainant’s request for a
reasonable accommodation in the form of using unpaid leave when necessary for
medical reasons was denied;

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4. On July 22, 2015 and August 17, 2015, Complainant was forced to take a total of
10.5 hours of leave without pay (LWOP); and

5. Beginning July 13, 2015, through February 12, 2016, the Agency denied
Complainant access to her previously accrued sick leave.

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). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

In its FAD, the Agency concluded that Complainant had not been denied reasonable
accommodation. More specifically, the Agency found that the Agency provided the
accommodation that she requested: a flexible schedule. The Agency added that Complainant did
not request telework or additional leave as reasonable accommodations, noting that Complainant’s
supervisors were not aware that those requests were requests for reasonable accommodations.
Once Complainant submitted the requested medical documentation under the reasonable
accommodation process, she was granted the requested flexible schedule.

Additionally, the Agency reasoned that here was no failure to provide a reasonable accommodation
when Complainant was not allowed the use of leave Complainant accrued from prior federal
service. Specifically, the Agency found that Complainant was provided with all the paid leave of
record; allowed to take LWOP; and was not charged for an absence without leave (AWOL). The
Agency noted that Complainant could have sought advanced sick leave for the relevant period, but
did not do so. Lastly, the Agency determined that management’s failure to credit her leave from
her prior federal service was not a failure to provide a reasonable accommodation. The Agency
found that management took all possible steps to determine her annual leave accrual rate; however,
it could not obtain this information until November 2015. When management obtained the
information, it credited Complainant with the annual leave difference.

The Agency further reasoned that management had articulated legitimate, nondiscriminatory
reasons for its actions. In particular, the Agency found that Complainant did not receive a flexible
schedule outside of the reasonable accommodation process because of business needs and
Complainant’s need to learn her new position. In addition, Agency policy required employees in
Complainant’s position to work for two years prior to eligibility for telework. The Agency
purported that management’s compliance with Agency policy regarding paid leave was a
legitimate, nondiscriminatory reason for not providing Complainant with paid leave that she had
not accrued. Likewise, management rationalized that it had no control over the timing of its receipt
of Complainant’s OPF for crediting Complainant’s prior accrued leave.

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

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”).

Denial of Reasonable Accommodation

The Commission notes that an Agency is required to make reasonable accommodation to the
known physical and mental limitations of a qualified individual with disability unless the Agency
can show that accommodation would cause an undue hardship. 29 C.F.R. §1630.9. To establish
a denial of 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 a reasonable
accommodation. For purposes of analysis, we shall assume, without so finding, that Complainant
is a qualified individual with a disability.

Here, the Commission finds that Complainant has not established that she was denied reasonable
accommodation. More specifically, management officials reported that Complainant did not
initially indicate during their conversations with her regarding schedule changes and telework that
she was requesting reasonable accommodation. The Agency added that once Complainant
submitted a reasonable accommodation request with appropriate medical documentation on July
16, 2015, she received her requested reasonable accommodation in the form of a flexible schedule.
The record indicates that on September 14, 2015, the Agency granted Complainant one day off
every other week under a compressed “5/4/9” schedule.

According to Agency officials, all denials outside of the reasonable accommodation process were
due to Complainant’s ineligibility for participation. S1 explained that participation in a flexible
schedule is available to most Agency employees, but participation may be restricted due to the
nature of an employee’s position. Furthermore, S1 stated that Complainant was ineligible for
telework because she had not worked at the Agency for the requisite two years. Similarly, the
Complainant was deemed ineligible for a flexible schedule under the IFP due to her level of
training and the Agency’s operational needs.

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As for Complainant’s contention that her request for a reasonable accommodation in the form of
using paid leave when necessary for medical reasons, the record indicates that the Agency allowed
Complainant the use of all paid leave that she accrued. In addition, the record reflects that
Complainant was granted LWOP in the instances that she did not have accrued leave available.

The Commission finds that Complainant has not established that the Agency failed to provide her
with a reasonable accommodation. Complainant has presented no evidence that the provided
accommodations were ineffective. Accordingly, the Commission finds that Complainant failed to
prove that the Agency denied her reasonable accommodation in violation of the Rehabilitation
Act.

Disparate Treatment

To prevail in a disparate treatment claim, 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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. 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 Products, Inc., 530 U.S. 133, 120 S.Ct.
2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Based on a thorough review of the record, we find that even if we assume arguendo that
Complainant established a prima facie case of discrimination and reprisal, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Regarding the use of previously accrued
leave, the Agency reported that there was a delay in crediting Complainant’s time because the
Agency had to wait to receive her OPF. A Human Resources Specialist stated that it can take
several months to retrieve an employee’s OPF and there is no way for Human Resources to
expedite the process. Complainant received her previously accrued sick leave once her OPF was
received from the National Archives. Specifically, a hard copy of Complainant’s OPF was
received in late August 2015 and a security breach delayed the scanning of the file. Leave
adjustments were conducted in early December 2015.

In addition, we find that the Agency articulated legitimate, nondiscriminatory reasons for
Complainant’s usage of 10.5 hours of LWOP on July 22, 2015 and August 17, 2015. With respect
to the LWOP hours taken on July 22, 2015, Complainant’s second-line supervisor (S2) reported
that Complainant was absent from work for a total of 4.50 hours on that day and attendance records
indicated that she did not have annual or sick leave available to use. S2 granted Complainant two
hours of administrative leave and two hours of LWOP for July 22, 2015. S2 stated that
Complainant was not required to take these hours, but chose to do so.
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As for August 17, 2015, S1 reported that he advised Complainant that she would have to utilize
LWOP because she had used all available leave that she had accrued.

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. 248, 256 (1981).

As Complainant did not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. 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 reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden.

Complainant failed to prove, by a preponderance of the evidence, that the Agency’s proffered
reasons were pretext designed to mask discrimination because of her disability or prior protected
activity. Moreover, as discussed above, Complainant has presented no evidence that the Agency
was unwilling to reasonably accommodate her or otherwise denied her reasonable accommodation.
As a result, the Commission finds that Complainant has not established that she was subjected to
discrimination or reprisal as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final agency decision.

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.
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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.

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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

October 17, 2018
Date