U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * MELODEE M., COMPLAINANT, v. ROBERT MCDONALD, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY. Appeal No. 0120142484 Agency No. 200J-0330-2013102296 April 8, 2016 DECISION Complainant filed an appeal from the Agency's May 21, 2014 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 Complainant worked as a Veterans Service Representative at the Agency's Regional Office in Milwaukee, Wisconsin. She was diagnosed as having multiple physical and mental disabilities such as hearing and visual impairments, musculoskeletal and gastrointestinal conditions, and post-traumatic stress disorder. Investigative Report (IR) 112-13, 129, 143, 156-67, 363-78. She was granted a number of accommodations by her second-level supervisor, the Assistant Veterans Service Center Manager (S2), including: a seat at the front of the room for training and team meetings with written summaries and materials provided to her as needed; adjustment of the resolution on her computer monitor; a special keyboard; a flexible tour of duty that allowed her to arrive between 6:00 AM and 9:00 AM as well as extended breaks; a quiet cubicle with convenient printer access; and use of her own chair that she used as an accommodation in her previous duty station. IR 132, 145-46, 175, 193-94. Nevertheless, on June 23, 2013, Complainant filed an EEO complaint in which she alleged that S2 had discriminated against her on the basis of her disabilities and retaliated against her for previous EEO activity by denying her request to be reassigned to a different supervisor on March 29, 2013. She characterized S2's decision as a failure to provide her with a reasonable accommodation. Her complaint included a second allegation, that on May 22, 2013, she was constructively discharged. On May 16, 2014, the Agency issued its final decision finding no discrimination on both claims. The decision set forth two sets of appeal rights: the right to file a mixed-case appeal with the MSPB on the constructive discharge claim and the right to appeal the denial of reasonable accommodation to the Commission. ANALYSIS AND FINDINGS We will address Complainant's reprisal claim first. The Commission cannot second-guess an Agency's personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). In a reprisal claim, Complainant can establish the existence of a retaliatory motivation by presenting documents or sworn testimony from other witnesses tending to show that the reason articulated by S2 for denying her reasonable accommodation request was a pretext. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008). When asked by the investigator why she believed that her previous EEO activity was a motivating factor in S2's denial of her reasonable accommodation request. Complainant responded that she had already been approved for reasonable accommodations at her prior duty station, and that S2 failed to honor her accommodations. IR 116-17. Beyond this assertion, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by S2 that she had been accommodated in several ways, or which call S2's veracity into question. The 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 (October 17, 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). There is no question that Complainant is a qualified individual with multiple disabilities who could perform the essential functions of her position as a Veterans Service Representative. See 29 C.F.R. § 1630.2(m). There is also no question that S2 provided Complainant with several reasonable accommodations, including a flexible tour of duty and a cubicle near a printer. While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Department of Justice -- Bureau of Alcohol, Tobacco, Firearms & Explosives, EEOC Appeal No. 0720140010 (December 3, 2015). Here, Complainant is essentially asking to be reassigned. The Commission has long held that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable Complainant to perform the essential functions of her current position or all other reasonable accommodations would impose an undue hardship. Zachary K. v. Department of Veterans Affairs, EEOC Appeal No. 0120130795 (November 19, 2015) citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002). Complainant in this case has not submitted any sworn statements or documents tending to show that the accommodations with which she was provided were in any way ineffective or would cause an undue hardship. Consequently, we find that the Agency fulfilled its obligation to provide Complainant with a reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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. See29C.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. 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 Director Office of Federal Operations 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.