Melania U.,1 Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 27, 2017

0120150745 (E.E.O.C. Apr. 27, 2017)

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

Melania U.,1
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120150745
Hearing No. 510-2014-00051X
Agency No. 13-00203-01394

DECISION

On December 19, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s November 20, 2014, final order 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 order.

BACKGROUND

Complainant worked as a Medical Records Technician at the Naval Hospital in Pensacola,
Florida. On April 25, 2013, she filed an EEO complaint in which she alleged that the Director
for Administration, her third-line supervisor (S3), the Commanding Officer (CO), and the
Executive Officer (XO) discriminated against her on the bases of disability (adjustment
disorder with mixed anxiety and depressed mood) and in reprisal for previous EEO complaints
by denying her request for leave without pay (LWOP) and placing her in absence without leave
(AWOL) status between January 29 through February 11, 2013.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did

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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not warrant a hearing and over Complainant's objections, issued a decision on August 26,
2014, without holding a hearing. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged.

In an unsigned declaration, Complainant averred that she had adjustment disorder with mixed
anxiety and a depressed mood, and that she first experienced symptoms of the condition in
February 2011. When asked whether she had any limits on her major life activities,
Complainant responded that she no longer found joy in the things that she used to, that she
often spent the day in bed or otherwise did not leave the house, and that her condition was
permanent. IR 82-83. She filed a previous EEO complaint on March 28, 2012. IR 42, 83.

On January 16, 2013, Complainant submitted a request for thirty days of LWOP beginning on
January 29, 2013, in order to support her daughter in a child-custody battle. IR 61. Per the
request, Complainant’s second-line supervisor, the Department Head for Patient
Administration (S2), instructed her first-line supervisor, the Inpatient Administration
Supervisor (S1), to prepare a memorandum addressing the impact that Complainant’s extended
absence would have on its operations pertaining to the processing and coding of patient
records. S1 stated in the memorandum that the office could, “experience a significant drop in
timeliness according to the standards set for records to be coded within 30 days from the date
of discharge,” an assessment shared by S3. IR 62, 100. On January 25, 2013, CO averred
that she denied Complainant’s request because of S1’s impact statement. CO did, however,
indicate that she would support Complainant having focused days off. IR 60, 106.

Later on January 25, 2013, Complainant submitted a letter from a Clinical Psychologist with
the Agency. The Psychologist stated that Complainant had “endorsed significant anxiety and
depressive symptoms in response to family stressors.” She also affirmed that Complainant’s
symptoms were consistent with adjustment disorder with mixed anxiety and depression, and
that Complainant would greatly benefit from a period of leave in order to address the factors
contributing to her stress. IR 63. S3 averred that Complainant did not provide any information
pertinent to the diagnosis or prognosis of her condition other than the Psychologist’s note, and
that the note itself was inconclusive in that it was based on a telephone consultation. IR 98-99.

On January 28, 2013, Complainant resubmitted her request for LWOP and this time included
the Psychologist’s note. Due to CO’s temporary absence, XO received the request. On
January 29, 2013, XO denied the request for the same reason that CO had done so several days
earlier, namely that the office would fall behind in its processing and coding of patient records.
As did CO, XO indicated that he was open to granting Complainant shorter stints of LWOP so
as not to compromise the Agency’s mission. IR 64, 93-95, 100-01. XO stated that he had
considered the note from the Psychologist in reaching his decision. IR 95-96, 101. In
particular, XO pointed out that proper medical record coding was critical to obtain
reimbursements for medical services provided. IR 101-02.

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Despite the denial of her request for LWOP, Complainant did not report to work on January
29, 2013, and remained out of work until February 11, 2013. On February 4, 2013, she
received a return-to-duty order informing her that she was in AWOL status. Upon her return
on February 11, 2013, Complainant submitted her voluntary resignation. IR 68, 72, 86-87,
100.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a summary judgment decision when he
finds that there are no genuine issues of material fact that would warrant a hearing. See 29
C.F.R. § 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317,
322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of the case. The evidence of the non-
moving party must be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

Disparate Treatment

The Commission cannot second-guess an Agency’s decisions involving personnel 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). Therefore, in order to warrant a hearing on her disparate treatment claim,
Complainant would have to raise a genuine issue of material fact as to whether S3, CO, and
XO were motivated by unlawful considerations of her disability and previous EEO activity in
their decision to deny her request for leave without pay. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant is an individual with a
disability under the Rehabilitation Act, and that she otherwise established a prima facie of case
of discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. In denying Complainant’s LWOP request, S3, CO,
and XO all cited that Complainant’s prolonged absence would disrupt the Agency’s patient
record coding operations, causing the office to fall behind on a significant accountability
metric. We find this reason to be legitimate, nondiscriminatory, and fully supported by the
record.

Complainant must present enough evidence to raise a genuine issue of material fact as to
whether the articulated reason is a pretext, i.e., not the real reason but rather a cover for
discrimination or reprisal. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
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rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). Beyond her own assertions, Complainant has not submitted
affidavits, declarations, or sworn statements from witnesses other than herself, or documents
which contradict the explanation provided by S3, CO, or XO, or which calls into question their
veracity as witnesses. IR 137. We therefore agree with the AJ that Complainant has not
presented evidence sufficient to raise a genuine issue of material fact as to whether S3, CO, or
XO denied her leave request because of her disability or previous EEO activity, and has not
shown the Agency’s reason to be pretext for discrimination.

Failure to Reasonably Accommodate Disability

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 (Oct. 17. 2002); Barney G. v. Dept. of
Agriculture, EEOC Appeal No. 0120120400 (Dec. 3, 2015).

A qualified individual with a disability is an “individual with a disability who satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
position such individual holds or desires, and who, with or without reasonable accommodation,
can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). The AJ found
that Complainant is a qualified individual with a disability and we see no reason to disturb her
finding in that regard.

Factors to consider in determining whether an accommodation would impose an undue
hardship include the size and budget of the program, the type of operation, and the nature and
cost of the accommodation. 29 C.F.R. § 1630.2(p). In this case, five witnesses, S1, S2, S3,
CO, and XO all stated that Complainant’s prolonged absence from work would case the office
to fall significantly behind schedule in its processing and coding of patient records, a function
that is central to its mission and necessary to obtain reimbursements for services provided.
Complainant has not presented documents or witness statements sufficient to raise a genuine
issue of material fact on whether Complainant’s extended absence would cause an undue
hardship.

Moreover, while Complainant is entitled to an effective reasonable accommodation, she is not
entitled to the accommodation of her choice. Lynette B. v. Dept. of Justice, EEOC Appeal
No. 0720140010 (Dec. 3, 2015). Both CO and XO offered to work with Complainant to
provide her with shorter, more focused periods of leave that would allow her to be with her
daughter and lessen the disruptive impact that Complainant’s extended absence would have
upon its patient coding operations. There are no indications in the record that Complainant
ever accepted these offers. Ultimately, we agree with the AJ that Complainant has not
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established that the Agency did not attempt to provide Complainant with a reasonable
accommodation for her disability.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s finding that Complainant was not discriminated
against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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).

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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 27, 2017
Date