Starr D.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120181978 (E.E.O.C. Sep. 11, 2019)

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

Starr D.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120181978

Agency No. FBI-2017-00016

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 1, 2018, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant established that the Agency discriminated against
her based on her disability, and in reprisal for prior EEO activity, when it denied her requested
accommodation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Operational
Support Technician (OST) at the Agency’s New Haven Division in New London, Connecticut.

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.
0120181978

2
Her duties included transcribing documents, processing toll records, processing mail, and
answering the telephone. Report of Investigation (ROI) at 82.

In December 2013, Complainant was informed that she would be transferred to the New Haven
office.2 She requested to remain at the New London office as a reasonable accommodation,
which request was granted. ROI at 83. Subsequently, on August 23, 2016, the Special Agent in
Charge (SAC) (no disability), and the Administrative Officer (AO) (no disability), informed
Complainant that she was being transferred to the New Haven office because the workload at the
New London office had significantly decreased. ROI at 84.

On September 1, 2016, Complainant submitted a request for a reasonable accommodation. With
the request, Complainant submitted a statement from her physician, who noted that Complainant
has cervical and lumbar degenerative disc diseases, with associated muscle spasm and
fibromyalgia. He recommended an ergonomic desk and that Complainant avoid prolonged
periods of driving for one hour or more.3 ROI at 145-46. From September 27 through October
19, 2016, Complainant was out of the office on Family and Medical Leave Act (FMLA) leave.
ROI at 84.

On October 19, 2016, the Unit Chief (UC) (disability) of the Office of Equal Employment
Opportunity Affairs (OEEOA) reviewed Complainant’s reasonable accommodation request and
sent a recommendation to SAC. In response to Complainant’s request to work in New London,
UC recommended that Complainant be allowed to work at the New London office two days per
week, and the New Haven Division’s main office three days per week. UC noted that when
Complainant commutes to the New Haven office, she could take public transportation, which
would allow her to stand, stretch, and move around. Additionally, UC recommended that the
Agency provide Complainant’s requested ergonomic chair and adjustable sit/stand workstation.
ROI at 148-49.

On October 20, 2016, UC provided her recommendation to Complainant. ROI at 382-84. Also,
on October 20, 2016, Complainant submitted additional medical information. ROI at 374-80. On
November 1, 2016, UC informed Complainant that the additional medical information did not
show a change in her medical condition to warrant a change to UC’s previous recommendation.
ROI at 372-73.

2 The New London office is within 50 miles of the New Haven office. Transfers between the
offices are considered “no cost transfers.” Staffing at the New London office can change at any
time. ROI at 273.

3 Complainant stated that the commute to the New Haven office would be approximately one
hour and twenty minutes, while her commute to the New London office was approximately 25
minutes. ROI at 515.
0120181978

3
On November 3, 2016, SAC met with Complainant and informed her that, due to the decreased
volume of work at the New London office, her skill set was needed in New Haven. SAC noted
that Complainant would be allowed to work 2-3 days in New Haven, with the remaining days at
the New London office. When Complainant stated that she could not commute to New Haven,
they discussed other options, such as a part-time work schedule. SAC also informed
Complainant that if she wished to pursue medical disability, SAC would support her decision.
ROI at 192.

On December 5, 2016, Complainant withdrew her request for a reasonable accommodation. The
Agency responded that it was placing Complainant’s request in an inactive status, and that she
could reengage at any time. ROI at 285-86. On or about December 22, 2016, Complainant
submitted her application for disability retirement. ROI at 298.

On February 21, 2017, SAC emailed Complainant to inform her about the change in her work
location. SAC reiterated that the decreased volume of transcript and toll records work could not
justify a forty-hour work week for Complainant in the New London office, and that she could
work two days per week at the New London office. SAC instructed Complainant to report to the
New Haven office on March 6, 2017. ROI at 200-01.

On February 24, 2017, Complainant submitted another reasonable accommodation request to
remain at the New London office because she is unable to commute more than 30 minutes each
way. ROI at 151. On February 28, 2017, UC emailed Complainant to inform her that SAC’s
email from February 21, 2017, was her final determination regarding Complainant’s reasonable
accommodation request. ROI at 157-59. Complainant started FMLA leave on March 6, 2017,
and she stated that she would be on FMLA leave “indefinitely.” ROI at 83.

EEO Complaint

On November 21, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (mental and physical), and in reprisal for prior
protected EEO activity, when on November 3, 2016, the Agency denied her request for a
reasonable accommodation. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal
Employment Opportunity Commission 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 decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

The Agency found that Complainant was a qualified individual with a disability. However, the
Agency found that the evidence did not prove that Complainant could fill a funded, full-time
vacancy in the New London office at the relevant times. The Agency noted that SAC and AO
stated that there was a diminished quantity of assignments available to Complaint in the New
London office, such that she could not work there on a full-time basis. The Agency also noted
that it was not required to create a position for Complainant.
0120181978

4
Accordingly, the Agency found that there was no violation of the Rehabilitation Act when it
denied Complainant’s request for a reasonable accommodation.

Regarding Complainant’s reprisal claim, the Agency found that the managers presented
legitimate, nondiscriminatory reasons for denying her request for a transfer to the New London
office as a reasonable accommodation. SAC and AO stated that Complainant could not work
full-time in the New London office because it did not have enough work for her. Additionally,
Complainant required supervisory attention that was unavailable in New London.4 The Agency
then found that no evidence impeached their statements, and that there was no evidence to
indicate that Complainant’s prior protected EEO activity played any role in the decisions of any
Agency manager. The Agency concluded that the record did not support Complainant’s
allegation that she was discriminated against based on her disability, or in reprisal for prior EEO
activity, when the Agency denied her request for a reasonable accommodation.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the management officials lied and exhibited a “lack of
candor.” For example, Complainant states that SAC lied because she had plenty of work, which
was given to other employees. Complainant also asserts that SAC exhibited a lack of candor
when she stated that she did not believe that Complainant was a qualified person with a
disability. Complainant also argues that OA defamed her when she stated that Complainant
engaged in “disruptive behavior.”

The Agency filed a brief opposing Complainant’s appeal. As an initial matter, the Agency argues
that the Commission should dismiss Complainant’s appeal as untimely. Even assuming that
Complainant received her decision in the standard five days, the Agency notes that Complainant
filed her appeal eighty-one (81) days after the Agency issued its final decision.

The Agency also argues that Complainant’s attacks on the management officials’ credibility is
without merit because it is not supported by any evidence in the record. The Agency notes that
Complainant takes statements out of context, and that her arguments are nothing more than
assumptions, speculations, and beliefs, which are not supported by any evidence. The Agency
asserts that there is no evidence that the Agency’s actions were based on unlawful discriminatory
motive and requests that the Commission affirm its final decision.

ANALYSIS AND FINDINGS

Standard of Review

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.

4 Complainant did not have direct supervision at the New London office because her
management chain resided in the New Haven office. ROI at 358.
0120181978

5
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at 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 submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Timeliness of Appeal

Appeals to the Commission must be filed within thirty (30) calendar days after a complainant
receives notice of the Agency's final action. 29 C.F.R. § 1614.402(a). The Agency argues that
Complainant’s appeal is not timely because her appeal was filed eighty-one (81) days after it
issued its final decision. Where, as here, there is an issue of timeliness, “[a]n agency always
bears the burden of obtaining sufficient information to support a reasoned determination as to
timeliness.” Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting
Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In this case, the
Agency did not provide any evidence showing when Complainant received its final decision.
Additionally, we note that while Complainant requested an extension to file her appeal, she did
not identify the date when she received a copy of the final decision. We find that the record does
not contain any evidence showing when Complainant received a copy of the Agency’s final
decision. As such, we will consider Complainant’s appeal to be timely and will address the
merits of her complaint in the instant decision.

Failure to Provide Reasonable Accommodation

In order to establish that Complainant was denied a reasonable accommodation, Complainant
must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a
disability; and (3) the Agency failed to provide 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). “The term ‘qualified,’ with respect to an individual with a disability, means that the
individual satisfies the requisite skill, experience, education and other job-related requirements
of the employment position such 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).
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), (p).
Assuming that Complainant is a qualified individual with a disability, we find that the Agency
did not fail to accommodate her. Complainant alleged that the Agency discriminated against her
on November 3, 2016, when it denied her request to remain at the New London office full-time.
However, the record establishes that the Agency did not have sufficient work for her at the New
London location.
0120181978

6
Accordingly, managers considered alternative accommodations for Complainant, including
exploring the possibility of a flexible work schedule or the Agency paying for Complainant to
move closer to the New Haven office. ROI at 101-02. Complainant then withdrew her request for
a reasonable accommodation on December 5, 2016.
On February 24, 2017, Complainant renewed her reasonable accommodation request. On
February 28, 2017, UC informed Complainant that the Agency’s final decision on her request
would allow her to work at the New London office two days per week. UC stated that the
Agency was not obligated to accommodate Complainant’s commuting restriction. However, the
Commission recognizes that disability accommodations related to commuting can be required
under the Rehabilitation Act in appropriate circumstances. See Hackney v. U.S. Postal Serv.,
EEOC Appeal No. 01984048 (Aug. 22, 2001); Hupka v. Dep't of Defense, EEOC Appeal No.
02960003 (Aug. 13, 1997) (agency violated the Rehabilitation Act when it refused to allow
complainant with a disability that was exacerbated by his long commute to work at home or at a
local alternative work site, but did not prove that doing so would be an undue hardship); see also
Harvey G. v. Dep't of the Interior, EEOC Appeal No. 0120132052 (Feb. 4, 2016); Lavern B. v.
Dep't of Housing and Urban Dev., EEOC Appeal No. 0720130029 (Feb. 12, 2015) (agency
denied complainant reasonable accommodation when it, among other things, did not grant his
request to telecommute 100 percent of the time); Jones v. Dep't of Agriculture, EEOC Appeal
No. 0120080833 (July 18, 2012); Saner v. U.S. Postal Serv., EEOC Appeal No. 01A13291 (Oct.
10, 2002) (noting that agencies may be responsible for accommodating employees with
disabilities with respect to their daily commute to work such as by modifying a work schedule or
applying a work-at-home policy where it would be an effective accommodation and would not
be an undue hardship).
In this case, the Agency did not offer Complainant the ability to work full-time at the New
London office because there was insufficient work at the location. We note that the
Rehabilitation Act does not require the Agency to make work for employees. See Complainant v.
U.S. Postal Serv., EEOC Appeal No. 0120111093 (Sept. 23, 2013) (management attempted to
“make work” for Complainant by cobbling together duties that were within his restrictions, but
the Rehabilitation Act does not require the agency to make work for employees); and Genereux
v. U.S. Postal Serv., EEOC Appeal No. 0120054254 (Jan. 30, 2007) (agency not required to
create a job for employee with a disability or to transform its temporary light-duty assignments
into permanent jobs to accommodate an employee's disability).

Further, the OEEOA Assistant Director stated that the Agency could not reassign Complainant
because it did not have any vacant, funded positions near her home, which would allow her to
adhere to her driving restriction. ROI at 236, 240. Complainant did not dispute that the Agency
could not have reassigned her to a different position. Similarly, Complainant did not argue that
she could have performed the New Haven work while telecommuting from New London. As
such, we find that Complainant did not establish that the Agency discriminated against her based
on her disability when it did not grant her requested accommodation to transfer to the New
London office on a full-time basis.

0120181978

7
Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For Complainant to prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-16 (1983).

Assuming, arguendo, that Complainant established a prima facie case of reprisal discrimination,
we find that the Agency proffered legitimate, nondiscriminatory reasons for not granting
Complainant’s request of a full-time transfer to the New London office. SAC stated that the New
London office did not have as much work as in the past, and that they could utilize Complainant
in the New Haven office. ROI at 100. The record shows that the toll assignments steadily
decreased from 490 in 2009 to 253 in 2016. ROI at 187. Additionally, AO noted that the toll
work diminished because: (1) more providers used electronic means to upload; (2) an internal
mandate stopped the routine request of years of toll data; (3) the current formats were not as
cumbersome as in the past; and (4) they had increased the efficiency of time-consuming toll
projects. ROI at 203.

OA also stated that Complainant was disruptive to other employees. For example, when
employees complained about issues with placing and receiving telephone calls, they discovered
that Complainant had placed a high volume of calls to a radio station over a two-month period,
which tied up the telephone lines. OA stated that it became apparent that Complainant needed
supervision. ROI at 111-12.

We find that Complainant has not shown that the proffered reason was pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise
not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.
Complainant argues that she had plenty of work, which was being assigned to others. SAC stated
that while other OSTs were assigned toll record and transcript work, the bulk of the work was
still assigned to Complainant. ROI at 100.
0120181978

8

On appeal, Complainant alleges that the managers lied about “needing to be closely supervised.”
Complainant did not request a hearing before an EEOC AJ, and as a result, we do not have the
benefit of an AJ's credibility determinations of the witnesses in this case. Complainant bears the
burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts
occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See
Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013)
(complainant failed to establish that witnesses made false statements where he withdrew his
request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of
Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish
that his coworker made offensive comments in a “he said, she said” situation where complainant
requested a final decision and an Administrative Judge did not make credibility determinations).
We find that Complainant did not provide any evidence showing that the management officials
lied about the decreased amount work available to Complainant, or her alleged disruptive
behavior. Accordingly, Complainant has not established that the Agency retaliated against her
when it denied her reasonable accommodation request to transfer full-time at the New London
office.

CONCLUSION

We find that Complainant did not establish that the Agency discriminated against her based on
her disability, or in reprisal for prior EEO activity, when the Agency did not grant her requested
accommodation for a full-time transfer to the New London office. Therefore, 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 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. 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).
0120181978

9
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.
0120181978

10
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

September 11, 2019
Date