Myles W.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Dec 13, 2018

0120170457 (E.E.O.C. Dec. 13, 2018)

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

Myles W.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120170457

Agency No. 16.019

DECISION

On November 8, 2016, 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
September 30, 2016 decision concerning his 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 decision.

ISSUES PRESENTED

Has Complainant established by a preponderance of the evidence that the Agency discriminated
against him by failing to provide reasonable accommodation; not selecting him for positions; and
terminating him?

BACKGROUND

Complainant, a disabled veteran, worked as a Food Service Foreman in the Agency’s Ramstein
Theater, Kaiserslautern Military Community (KMC) Exchange, in Germany. Complainant
sustained a work-related aggravation to his physical condition and remained off work after the
injury, during which time he received workers’ compensation benefits.

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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He was apparently not able to work at all beginning October 29, 2013, and he was in a leave
without pay status continuing from April 28, 2014. In his affidavit, Complainant stated that he
was off work for two and a half years following the work injury. Complainant was subsequently
terminated.

On October 17, 2015, Complainant initiated EEO Counselor contact. On January 4, 2016,
Complainant filed a discrimination complaint alleging that the Agency discriminated against him
on the bases of disability (ulnar impairment in both arms) and reprisal for prior protected EEO
activity when:

1. Beginning November 2013, the Agency failed to accommodate him;

2. Complainant applied for and was not selected for Loss Prevention positions in the
spring and fall of 2015; and

3. On December 18, 2015, Complainant was separated from the Agency, effective
April 27, 2014.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, the Agency issued its decision pursuant to
29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency
had subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant asserts that the Agency failed to accommodate him by offering him positions that
violated his medical restrictions; that he could perform the essential functions of his position with
accommodation; and that the Agency failed to establish undue hardship in not accommodating
him. Complainant also argues that he was qualified for Loss Prevention positions but he was not
selected and that he was not terminated until after he engaged in protected activity.

The Agency contends that Complainant failed to show that he was treated disparately from
similarly situated employees; that Complainant was not a qualified person with a disability; that it
provided Complainant with reasonable accommodations; and that there were no equivalent
positions to which Complainant could be reassigned.

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
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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”).

Claim 1 – Failure to Accommodate

Under the Commission’s regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to make 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). A request for a reasonable accommodation need not be in writing, in a
particular format, or use the magic words “reasonable accommodation,” in order to trigger the
employer’s obligation to commence the interactive process of clarifying and assessing the request.
See Ricco v. U.S. Postal Serv., EEOC Appeal No. 07A10007 (Feb. 21, 2002); Corbett v. General
Svcs. Admn., Petition No. 03A10017 (Apr. 12, 2001).

To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he
is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide
him 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 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). The term “position” is not limited to the position held by
the employee, but also includes positions that the employee could have held. Van Horn v. U.S.
Postal Serv., EEOC Appeal No. 01960159 (Oct. 23, 1998) (term “position” not limited to the
position actually held by the employee but, also, includes positions that the employee could have
held as a result of job restructuring or reassignment). Accordingly, in determining whether an
employee is “qualified,” an agency must look beyond the position which the employee presently
encumbers. “Essential functions” are the fundamental job duties of the employment position that
the individual holds or desires. 29 C.F.R. § 1630.2(n).

As an initial matter, we note that the Agency does not appear to dispute that Complainant is an
individual with a disability.2 Nonetheless, even assuming for the purposes of analysis that
Complainant has a disability, Complainant has not shown, nor does the record support a finding,
that Complainant was a qualified individual with a disability who could perform the essential
functions of the position that he held or one that he desired, with or without an accommodation.

2 Medical documentation contained in the record is sparse.
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Complainant stated in his affidavit that he has chronic pain syndrome that is permanent and the
pain increased in severity due to repetitive actions that he had to perform in his position. He stated
that he had chronic nerve pain syndrome and using his arms increased his disability. According
to Complainant, he told the Food Business Foreman, a supervisor in his chain of command, that
the manual labor he was performing in the theater was causing him pain. Complainant stated that
performing manual work such as lifting, sweeping, or repetitive bending at the elbows caused his
pain to increase from a level 5, his every day pain level, to a level 9, causing him to feel nauseated
and having to take pain medication. He explained that he was diagnosed with his condition in the
military in 2001. Complainant also stated that his family physician and the CCSI3 doctor
recommended that he be given sedentary employment that only required limited arm use to prevent
further damage to the nerves in his arms.

An email dated February 6, 2016 discloses that Complainant had permanent restrictions as follows:
“can only perform work without light use of hands and carry out work without using his hands and
elbows.” ROI at 67. Another email dated February 8, 2016, explained that Complainant had a
permanent loss of capacity in both arms for physical activity in the form of plaster work, heavy
lifting and carrying as well as monotonous repetitive movements. ROI at 68. Work restrictions
were identified as limited capacity in both arms due to ulnar nerve injury, lifting and carrying a
maximum of 22 pounds, and computer work limited by pain. Complainant was also not to engage
in monotonous, repetitive movements such as sweeping, popcorn scooping, etc. Id. It was not
known, according to the email, when Complainant could return to limited or part-time work.

Based on the foregoing and the record considered as a whole, we conclude that there were no
accommodations that would have enabled Complainant to perform the essential functions of his
position which, at the very least, would have included prohibited repetitive motions of his arms.
We note that the Commission has recognized that an agency is not required to come up with “make
do” work, create “make work” jobs or transform light or limited assignments into permanent jobs
to accommodate an employee’s disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir.
1997); Josephine S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161196 (June 26,
2018); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122755 (Sept. 11, 2014)
(employer not required to provide “make do” work or create a job for a disabled employee).
Neither is an agency required to transfer essential functions of a position to other employees as an
accommodation.

To the extent that Complainant may be contending that he should have been permitted to remain
on leave without pay as an accommodation, the Commission notes that while leave is permitted as
an accommodation, “[leave without pay] for an indefinite period of time with absolutely no
indication that one will or could return is not an accommodation contemplated under the
Rehabilitation Act.” Hilda H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162443 (Mar.
6, 2018), req. to reconsider den., EEOC Request No. 0520180318 (July 23, 2018).

3 Complainant explained that “CCSI” was the insurance company in Texas that handled workers’
compensation claims.
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Having so concluded, we next address whether the Agency could accommodate Complainant by
reassignment to a different position for which he was qualified.

Reasonable accommodation includes such modifications or adjustments as job restructuring, the
acquisition or modification of equipment or devices, and reassignment to a vacant position. 29
C.F.R. § 1630.2(o)(2)(ii). In general, reassignment is the reasonable accommodation of last resort
and should be considered only when: (1) there are no effective accommodations that would enable
an employee to perform the essential functions of his or her current position; or (2) accommodating
the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app.
§ 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency
should reassign the employee to a vacant position that is equivalent in terms of pay, status, and
other related factors. If there are no vacant equivalent positions, then the agency should reassign
the employee to a lower-level position that is closest to the current position. Id.

“[A] federal agency’s obligation under the Rehabilitation Act to offer reassignment is not limited
to vacancies within a particular department, facility, or geographical area.” Julius C. v. Dep’t of
the Air Force, EEOC Appeal No. 0120151295 (June 16, 2017). Instead, the extent of the agency’s
search for a vacant position is an issue of undue hardship. Id.; Enforcement Guidance on
Reasonable Accommodation at Q. 27.

Commission Guidance states that the agency is in the best position to know which jobs are vacant
or will become vacant within a reasonable period of time and an agency is obligated to inform an
employee about vacant positions for which the employee may be eligible as a reassignment.
Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0720100037 (Mar. 26, 2014);
Enforcement Guidance on Reasonable Accommodation, at Q. 28; see also Woodman v. Runyon,
132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers are far better placed than employees to
investigate in good faith the availability of vacant positions); Mui P. v. Dep’t of Agriculture,
EEOC Appeal No. 0120152712 (Jan. 26, 2017); Kristofer E. v. U.S. Postal Serv., EEOC Appeal
No. 0120170557 (Jan. 25, 2018), citing Bill A. v. Dep't of the Army, EEOC Appeal No.
0120131989 (Oct. 26, 2016).

The record reveals that while Complainant was on leave without pay, the vacant positions available
were for Food Service Workers and Food Service Foreman positions. ROI Exhibit F-1(j). Because
of his medical restrictions, Complainant could not qualify for these positions. Complainant also
acknowledges that he was offered positions such as Food Service Worker, Food Service Driver,
and working at a kiosk position but that he declined those positions because he was unable to
perform them because of his medical condition or because the positions were below his pay grade.

By letter dated October 6, 2015, the General Manager notified Complainant that it had secured a
vacant position for him as a Store Associate4 which would accommodate his permanent restrictions
and was making him an immediate offer. ROI at 103.

4 This is the same position identified by Complainant as the kiosk position.
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There would be no lifting or carrying more than 22 pounds, limited computer work, and no
monotonous or repetitive movements, i.e., cleaning, sweeping floors, scooping popcorn. The
position was inside a gas kiosk taking customer payments after they fueled their vehicles. Instead
of a regular full time position, the offered work was regular part time. Although Complainant
declined the offered position, we find that it was consistent with his medical restrictions.
Complainant is not entitled to an accommodation of his choice but only to one that is effective.

The Commission also notes that the Agency was under a reduction in force and there were no high
graded or full-time positions to offer and he could not perform in other supervisory positions. ROI
at 346.

Based on the foregoing, we find that the Agency did not fail to accommodate Complainant. The
Agency offered Complainant positions while he was in leave without pay status. Also, there were
no equivalent positions available within Complainant’s medical restrictions to which Complainant
could be reassigned and Complainant has not identified any. The Agency offered Complainant a
reassignment to a part-time position that was consistent with his restrictions. However,
Complainant declined it.

Claim 2 – Nonselection

Complainant claims that he was not selected for two Loss Prevention positions for which he
applied, one in Baumholder and the other in Ramstein. In his affidavit, he stated that he applied
for the Loss Prevention position in Baumholder in spring 2014 and received an email informing
him that the position was rescinded. He stated that he applied for a Loss Prevention position in
fall 2015 in Ramstein and learned that there was a female in the position temporarily. The vacancy
was posted and he applied. The next day, the posting disappeared.

Based on the record, we find that there was no posting for a Loss Prevention position in
Baumholder. A temporary, part-time Loss Prevention position was posted in November 2014.
Complainant, however, did not apply and a “Local National” employee, a German female, was
selected. There was a Loss Prevention position in Dallas, Texas in spring 2014 for which
Complainant applied and another in July 2014. The positions were filled in Dallas. Complainant
does not present evidence establishing that the selections were based on unlawful discrimination
and drew no nexus between his nonselection and prohibited discrimination. A Loss Prevention
position was posted in Ramstein in October 2015, but the position was rescinded before the closing
date. The Agency’s legitimate, nondiscriminatory reason for the recission was that one of the
deployed associates was returning from deployment and there was no longer a need to fill the
position. Complainant has not shown that the Agency’s reasons were pretextual.

Claim 3 – Termination

Complainant claims that his termination was retaliatory and disability-based. As set forth earlier
herein, by letter dated October 6, 2015, the General Manager notified Complainant that it had
secured a vacant position for him as a Store Associate which would accommodate his permanent
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restrictions and was making him an immediate offer. The Counselor’s Report reveals that
Complainant initiated EEO counseling on October 17, 2015.

A November 10, 2015 letter from the General Manager to Complainant provided him with an
advance notice of termination. The General Manager informed Complainant that he was being
terminated because he was in a leave without pay status for more than a year, pursuant to EOP 15-
10.5 Complainant replied to the proposed termination to the General Manager in an email dated
November 27, 2015. ROI at 257. In a final notice of termination, dated December 9, 2015, the
General Manager acknowledged Complainant’s response and informed him that he would be
separated, effective the last day that he was in active pay status, i.e., April 27, 2014. ROI at 264-
65. The notice reiterated that he was being terminated because he had been in a leave without pay
status for more than a year.

We find that Complainant was terminated not because of discriminatory reasons but because he
remained in leave without pay status for more than a year. As pointed out earlier, “[leave without
pay] for an indefinite period of time with no indication that one will or could return is not an
accommodation contemplated under the Rehabilitation Act.” Hilda H. v Dep’t of Veterans Affairs,
EEOC Appeal No. 0120162443 (Mar. 6, 2018), req to reconsider den., EEOC Request No.
0520180318 (July 3, 2018); Valente v. U.S. Postal Service, EEOC Appeal No. 01A34243 (Nov.
24, 2004); Kemerer v. Nat'l Sec. Agency, EEOC Appeal No. 01993550 (Feb. 21, 2002)
(complainant, who requested that her absence from work be listed as LWOP instead of AWOL,
failed to establish that she is a qualified individual with a disability).

The evidence also does not support Complainant’s claim that that there were employees similarly
situated who were treated more favorably by being allowed to remain in a leave without pay status
for over a year and were not terminated.

Complainant alleges that his separation was retaliatory. A complainant may establish a prima facie
case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware
of his protected activity; (3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t
of the Air Force, EEOC Appeal No. 01A00340 (Sept. 26, 2000). The nexus may be shown by
evidence that the adverse treatment followed the protected activity within such a period of time
and in such a manner that a reprisal motive is inferred. See Devereux v. U.S. Postal Serv., EEOC
Request No. 05960869 (Apr. 24, 1997). We do not find that the Agency’s action in separating
Complainant was retaliatory. As noted earlier herein, Complainant was notified by the General
Manager in an October 6, 2016 letter, to which Complainant acknowledged receipt by signature
on October 9, 2016, that it had secured a vacant position for him as a Store Associate which would
accommodate his permanent restrictions and the Agency was making him an immediate offer.
ROI at 103.

5 EOP 15-10 is a directive which provides policies and procedures for the functions performed by
the Army and Air Force Exchange Service Human Resources Offices. ROI at 183, 275.
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Complainant was informed that he had to return his response to the General Manager’s office
within 14 days of the date of the letter and that if he did not respond, his failure to respond would
be considered a refusal of the offer. There is no evidence indicating that Complainant submitted
a response to the General Manager’s office.

Complainant initiated EEO Counselor contact on October 17, 2016. The General Manager then
sent an Advance Notice of Separation (notice), dated November 10, 2015, advising Complainant
that he would be terminated because he had been on leave without pay for more than a year. The
notice occurred in temporal proximity to his EEO Counselor contact. The General Manager stated
in his affidavit, however, that he was unaware of the EEO contact until December 2015, when an
EEO mediator contacted him to resolve the complaint. ROI at 381. There is no evidence
establishing that the General Manager knew of Complainant’s protected activity until December
2015. The record, however, reflects that the Human Resources (HR) Manager prepared the
termination letter for the General Manager and she knew of Complainant’s participation in
protected activity. ROI at 383. She stated in her affidavit that Complainant sent her an email on
October 19, 2015, in which he informed her that he could not accept the job offer because of a
discrimination complaint and he was bringing his action to her attention in order to obtain relief
from any adverse action taken against him. Although the HR Manager was aware that
Complainant had engaged in protected activity and she prepared the termination letter for the
General Manager’s signature, this does not lead us to conclude that it was retaliation that caused
the HR Manager to prepare the termination notice. Complainant was terminated because he was
on leave without pay for more than a year.

Although the initial inquiry in a discrimination case usually focuses on whether the complainant
has established a prima facie case, following this order of analysis is unnecessary when, as here,
the agency has articulated legitimate, nondiscriminatory reasons for the personnel action at issue.
Once a complainant has made out a prima facie case and the agency has articulated a legitimate,
nondiscriminatory reason for the employment decision, the complainant bears the burden of
demonstrating that the reason is pretextual, that is, it is “not the true reason for the employment
decision.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In such cases, the inquiry shifts from
whether the complainant has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency’s reasons for its actions merely were a pretext for
discrimination or retaliation. Complainant has failed to do so. To ultimately prevail, Complainant
had to prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);

In sum, we conclude that Complainant has failed to show by a preponderance of the evidence that
the Agency failed to provide him with reasonable accommodation, failed to select him for Loss
Prevention positions or separated him from the Agency for discriminatory reasons.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding of 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 13, 2018
Date