Glenda Wearren, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 0120100926 Agency No. DFAS-00016-2009 DECISION On December 14, 2009, Complainant filed an appeal from the Agency’s November 17, 2009, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Accountant Technician at the Agency’s Accounts Payable facility in Columbus, Ohio. On January 27, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. On October 6, 2008, the Agency denied Complainant’s request for a reasonable accommodation to move her desk; 2. On November 6, 2008, the Agency denied Complainant’s request for a reasonable accommodation to telework; and 3. On December 4, 2008, Complainant received a negative special annual evaluation. 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). The Agency indicated that it did not receive a response from Complainant. 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. Complainant appealed. On appeal, Complainant argued that she had in fact requested a hearing before an EEOC AJ. She asked that an AJ be assigned to assess credibility of the Agency’s evidence. Finally, Complainant requested that the Commission find that the Agency’s actions constituted disparate treatment. The Agency responded on appeal asking the Commission to affirm its final decision finding no discrimination. 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. (November 9, 1999) (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”). As noted above, Complainant alleged on appeal that she requested a hearing. We note that Complainant failed to provide any evidence or proof that she actually made such a request. The Agency's complaint record does not indicate that it received its copy of any hearing request. Moreover, a review of the EEOC's hearing docket provides no indication that the hearing request was received and docketed. Complainant also failed to provide an affidavit stating when and where she mailed the request, a copy of any correspondence she allegedly received from the AJ, or any other evidence to support her assertion that she requested a hearing on the instant matter. As such, the Commission finds no support for Complainant's claim that she requested a hearing in this matter.. Therefore, we find no error in the Agency's issuance of a decision on the record. Denial of Reasonable Accommodation1 Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). It is the Commission’s position that if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” 29 C.F.R. § 1630.9; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (revised October 17, 2002); Polen v. Dep’t of Defense, EEOC Appeal No. 01970984 (January 16, 2001). Thus, while Complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, she is not entitled to the accommodation of her choice. As to Complainant’s claim of denial of reasonable accommodation, Complainant asserted that she needed a different workstation that was located in an area away from sources of smells that triggered her asthma. The record showed that Complainant had problems with her workstation began when a copier was placed next to her in 2007. Her workstation was moved to a different location within her division. Complainant complained that the new location was positioned too close to the cafeteria which had smells that triggered her condition. Also, Complainant noted that it was near the elevator and had high traffic of people coming in from their smoking breaks. She indicated that the smell of smoke also triggered her asthma. In response to Complainant’s request and medical documentation to support her request, Management looked at moving Complainant to a different workstation away from smokers and other sources of triggers to her asthma. The Agency also provided Complainant with a humidifier and fan to help the effects of the odors. Complainant was offered a number of different workplaces but rejected them. Management noted that Complainant did accept one location but rejected it. The Commission notes that Complainant did not address the accepted location and did not explain how it was not effective. As noted above, Complainant may be entitled to an effective accommodation; she is not entitled to the accommodation of her choice. The Agency asserted that it provided Complainant with an effective workstation but Complainant rejected the options without explanation. As such, we determine that the Agency offered Complainant a reasonable accommodation even if it is not the workstation she wanted. Complainant also asserted that she requested telework as a reasonable accommodation. We note that Complainant also must show that she is a “qualified” individual with a disability within the meaning of 29 C.F.R. § 1630.2(m). We note that the discussion of “qualified” does not end at complainant’s position. The term “qualified individual with a disability,” with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). Management averred that Complainant’s position required her to work with system material which is protected by the Privacy Act. Therefore, Management found that Complainant could not perform her functions from home. Accordingly, we find that telework would not have been an effective accommodation. As such, the Commission finds that Complainant failed to demonstrate that the Agency’s actions constituted a violation of the Rehabilitation Act. Disparate Treatment Claim A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review of the record, we find that Management has provided legitimate, nondiscriminatory reasons for its actions. As noted above, Complainant’s Supervisors averred that they provided Complainant with several options for workstations which she rejected. Further, Management indicated that Complainant could not perform her job functions from home, as such the Agency denied Complainant’s request for telework. Finally, as to the performance rating, the record indicated that Complainant received a rating of “Fully Successful.” Complainant’s Supervisors averred that Complainant had received the same overall rating for the past three years. They asserted that the rating was not negative and that the rating was based on her performance. Complainant has not shown that the Agency’s reasons were pretext for unlawful retaliation. As such, we find that Complainant failed to show that she was subjected to retaliation 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 decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations January 5, 2012 __________________ Date 1 The Commission notes that in her formal complaint, Complainant only alleged discrimination based on her prior EEO activity. However, a review of the complaint and the investigation clearly show that Complainant alleged discrimination based on her disability (asthma) when she was denied her requested reasonable accommodations. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120100926 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120100926