EEOC Appeal 2020000951

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shae M.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020000951
Hearing No. 410-2019-00069X
Agency No. IRS-18-0016-F
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 September 30, 2019,
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.
ISSUE PRESENTED
The issue is whether Complainant established that the Agency discriminated against her based on
her disability when it denied her three requests for advanced sick leave.
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.

2020000951	2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correspondence
Examination Technician at the Agency’s Wage and Investment, Return Integrity and Compliances
Services Examination Department in Doraville, Georgia. On June 15, 2017, Complainant suffered
a fall while at work and injured her shoulders, left knee, back, and hands. Report of Investigation
(ROI) at 68.
Complainant filed a claim with the Department of Labor’s Office of Workers’ Compensation
Program (OWCP). On July 18, 2017, Complainant was informed of the deficiencies of her OWCP
claim and was given an opportunity to submit additional information. On August 22, 2017,
Complainant’s OWCP claim was denied because she only provided a brief statement and
additional explanations and clarifications were needed regarding how the injury occurred;
specifically, Complainant did not respond to a factual questionnaire, dated July 18, 2017. ROI at
258-63.
On August 11, 2017, Complainant submitted a request for 120 hours of advanced sick leave for
August 1, 2017, through August 18, 2017. The Acting Department Manager (ADM) disapproved
the request because Complainant’s OWCP claim was still pending, due to insufficient medical
documentation. ADM noted that Complainant had been paid through August 2, 2017, and ADM
approved leave without pay (LWOP) for August 3-18, 2017. ROI at 175.
On September 1, 2017, Complainant emailed ADM to request advanced sick leave for August 1,
2017, to September 6, 2017. On September 6, 2017, ADM denied Complainant’s request due to
insufficient medical documentation. On October 6, 2017, ADM denied another request for
advanced sick leave due to insufficient medical documentation. ROI at 183-4,191.2
On December 27, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her based on her disability (physical) when it denied her three requests for
advanced sick leave on August 14, 2017, September 6, 2017, and October 3, 2017. The Agency
accepted this claim for investigation. However, the Agency dismissed Complainant’s claims that
she was discriminated against when her workers’ compensation claim was denied because
management submitted false information to the Department of Labor; and when she was harassed
for attending Employee Assistance Program services and using leave pursuant to the Family and
Medical Leave Act for failure to state a claim. The Agency determined that the claim regarding
the denial of her OWCP claim was a collateral attack on the workers’ compensation process. The
Agency also determined that Complainant failed to adduce any facts that could support a
cognizable claim of harassment. ROI at 39-43.
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 EEOC Administrative Judge (AJ).
2 We note that the copies of Complainant’s requests are not completely legible, but the portions of
the documents showing ADM’s denials are visible.

2020000951	3
Complainant requested a hearing, but the AJ dismissed the hearing request due to Complainant’s
failure to comply with his order to file a pre-hearing statement, without showing good cause for
her failure.3 The AJ remanded the complaint to the Agency, which issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).
As an initial matter, the Agency affirmed the procedural dismissal of Complainant’s claims related
to the denial of her workers’ compensation claim and allegation of harassment.4 The Agency
assumed a prima facie case of disability discrimination and found that management explained that
employees need to provide sufficient medical documentation to support a request for advanced
sick leave, and that Complainant did not provide adequate medical documentation until December
2012. The Agency then found that Complainant did not disprove the legitimate, nondiscriminatory
reasons. The decision concluded that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.
Complainant filed the instant appeal and submitted a statement in support of her appeal. The
Agency opposed Complainant’s appeal.
CONTENTIONS ON APPEAL
Complainant’s contentions
Complainant argues that the Agency failed to engage in an interactive process for her known
disability. Complainant asserts that the Agency did not follow its own rules and regulations to
grant her paid leave, and that it did not prove that her medical documentation was insufficient.
Complainant states that her managers made “misrepresented statements,” and that she provided
the requested medical documentation.
Complainant asserts that she was retaliated against when she was informed that the Agency was
preparing her removal from federal service. Complainant also states that she was charged with
absence without leave (AWOL) and issued a reprimand. With Complainant’s appeal, she
submitted documentation related to the discipline and an undated medical statement.
3 We note that the Commission has the discretion to review only those issues specifically raised in
an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not challenge the AJ’s decision
to dismiss her hearing request; as such, we will not address the matter in the instant decision.
4 Complainant did not contest the Agency’s procedural dismissal of these claims in her appeal; as
such, we will not address them in the instant decision.

2020000951	4
Agency’s contentions
The Agency asserts that there is no evidence in the record to support Complainant’s claims of
discrimination. The Agency states that Complainant was not denied a reasonable accommodation,
and she was provided LWOP. The Agency argues that Complainant’s requests for advanced sick
leave were not supported because Complainant only provided a statement from her doctor stating
that he “did not recommend [Complainant’s] release back to work.” The Agency states that the
documentation was insufficient to establish that Complainant had a disability because it did not
describe the nature and severity of Complainant’s impairment, but that the Agency still granted
Complainant LWOP. In addition, the Agency notes that the documentation did not provide for an
estimated return date, or Complainant’s actual injuries and limitations, for it to consider other
accommodations. The Agency argues that an employee is not entitled to advanced sick leave and
that it may choose among reasonable accommodations as long as it is effective.
The Agency also argues that it articulated legitimate, nondiscriminatory reasons for its actions and
Complainant did not show pretext for discrimination. The Agency requests that the Commission
affirm its final decision finding no discrimination.
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. § 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”).
As an initial matter, we note that Complainant raises new issues on appeal, including a proposed
removal, a reprimand, and AWOL charges. However, the Commission has held that it is not
appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v.
Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, we will not
address these new claims in the instant decision. Should she wish to pursue these new claims,
Complainant is advised to contact an EEO Counselor to initiate the administrative process. For
timeliness purposes, if Complainant’s initial contact would have been timely on the date she filed
her appeal (November 2, 2019), then Complainant’s contact will be deemed timely if initiated
within ten (10) days of the date she receives this decision.

2020000951	5
We also note that Complainant seems to raise an allegation of a failure to accommodate on appeal.
While the Agency did not accept a claim of a failure to accommodate, we find that Complainant’s
claim can be construed as an allegation of a failure to accommodate, and that there is sufficient
information in the record to make a fair and reasoned determination on this claim. As such, we
will address a claim of a failure to accommodate below.
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, for the purpose of analysis and without so finding, that Complainant is a qualified
individual with a disability, we find that the Agency did not fail to accommodate Complainant
because it granted LWOP as an accommodation. The Commission has found that providing
LWOP, instead of advanced sick leave, is not a failure to accommodate because an agency is not
obligated to provide a complainant with paid leave beyond that which is provided to similarly
situated employees. See Bettyann B. v. Dep’t of the Veterans Affairs, EEOC Appeal No.
2019002998 (Aug. 18, 2020); Joseph v. Dep’t of Def., EEOC Appeal No. 0120060710 (Mar. 7,
2007), citing the Enforcement Guidance.
Complainant alleges that the Agency failed to engage in the interactive process. After receiving a
request for reasonable accommodation, “it may be necessary for the [agency] to initiate an
informal, interactive process with the individual with a disability . . . [to] identify the precise
limitations resulting from the disability and potential reasonable accommodations that could
overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also Enforcement Guidance at Question
5. However, the Commission has recognized that an agency’s failure to engage in the interactive
process does not, in itself, constitute a violation of the Rehabilitation Act. See Pitts v. U.S. Postal
Serv., EEOC Appeal No. 0120130039 (Mar. 13. 2013) (citing Doe v. Social Sec. Admin. Appeal
No. 01A14791 (Feb. 21, 2003)).
Liability depends on a finding that, had a good faith interactive process occurred, the parties could
have found a reasonable accommodation. Id. Accordingly, the fact that the Agency failed to
properly engage in the interactive process, does not, by itself, demand a finding that Complainant
was denied a reasonable accommodation.

2020000951	6
Rather, to establish a denial of a reasonable accommodation, Complainant must establish that the
failure to engage in the interactive process resulted in the Agency’s failure to provide a reasonable
accommodation. Id. In this case, we find that Complainant did not show that any purported failure
to engage in the interactive process resulted in a failure to accommodate because the Agency
granted Complainant an accommodation of LWOP.
In addition, we note that the Rehabilitation Act provides that qualified individuals with a disability
be granted 	an 	effective reasonable accommodation, 	but 	it 	does 	not 	entitle them to the
accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005
(Feb. 17, 1994); see also Enforcement Guidance at Question 9. While Complainant preferred
advanced sick leave as an accommodation, we note that she did not argue that LWOP was an
ineffective accommodation. As such, we find that Complainant did not show that the Agency
violated the Rehabilitation Act because it granted her LWOP as an accommodation.
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, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of disability discrimination,
we find that the Agency proffered legitimate, nondiscrimatory reasons for its actions. ADM stated
that Complainant’s requests for advanced sick leave were denied due to insufficient medical
documentation. ROI at 170.
We find that Complainant has not shown that the proffered reason was pretext for discrimination.
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 rationally
find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 	(Nov. 	20, 	2007) 	(finding 	that 	the 	agency’s 	explanations 	were 	confusing,
contradictory, and lacking credibility, which were then successfully rebutted by the complainant),
request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008).

2020000951	7
On appeal, Complainant argues that the Agency did not follow its own rules and regulations to
grant her paid leave. However, Complainant did not specify how that Agency failed to follow its
rules and regulations, and we note that the record includes the Agency’s policy on Advanced Sick
Leave, which states that employees’ requests must be supported by medical documentation. ROI
at 331.
Complainant also argues that her managers made “misrepresented statements,” and that she
provided the requested medical documentation. However, Complainant simply disagrees with the
Agency’s determination that she did not provide adequate medical documentation, and she did not
provide any evidence showing that her managers made statements that are not worthy of belief.
As such, we find that Complainant did not establish that the Agency discriminated against her
based on her disability when it denied her three requests for advanced sick leave.
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 that Complainant
did not establish that the Agency discriminated against her based on her disability when it denied
her three requests for advanced sick leave.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.

2020000951	8
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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.

2020000951	9
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
November 16, 2020
Date