EEOC Appeal 2019005378

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irvin M.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2019005378
Agency No. CHI-19-0333-SSA
DECISION
On August 20, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 16, 2019 final decision concerning his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney Adviser,
GS-12, at the Agency’s Office of Hearing Operations (OHO) in Livonia, Michigan. He began
Agency employment effective July 22, 2018, and was within a limited time appointment with a
two-year trial period. Complainant was responsible for drafting Administrative Law Judge (ALJ)
decisions on appeals made in accordance with the Social Security Act.
On February 14, 2019, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of disability (Narcolepsy/Obstructive Sleep Apnea) and
reprisal for prior EEO activity (reasonable accommodation requests and suspected whistleblower
status) when:
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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1. on December 20, 2018, management issued Complainant a termination
letter effective by January 8, 2019, for performance concerns, and
2. on October 26, 2018 and November 14, 2018, the Agency denied
Complainant’s request for reasonable accommodation.
The Agency issued a Partial Acceptance/Partial Dismissal accepting the complaint on the basis of
disability, but dismissing the basis of reprisal. The Agency stated that Complainant cited
whistleblower activity, which does not justify the basis of reprisal. The Agency investigated
claims (1) and (2) on the basis of disability only.
During the EEO investigation, Complainant stated that he self-identified during hiring as an
individual with a disability and was Schedule A eligible. For claim (1), he stated, in lieu of
termination, he submitted a resignation letter on January 7, 2019. Complainant stated that the
Agency moved the “efficiency goal posts” and held him to a higher standard than others during
the Attorney-Advisor training period. He stated that management told him previously he was “on
pace” for his position.
For claim (2), Complainant stated that the Agency provided two accommodations, but “not the
accommodations [Complainant] was seeking.” Complainant stated that he has “unintended
involuntary daytime sleep” and was diagnosed with Narcolepsy and Obstructive Sleep Apnea.
Complainant stated that he falls asleep 30 – 60 minutes at a time, multiple times per day.
Complainant stated that he has some difficulty in work settings and needs “additional break time
to refresh.” Complainant stated that the Agency required him to sign in and out as he took
medically-required breaks throughout the day, which he found unreasonable and punitive.
Specifically, Complainant requested compensated break times. Complainant stated that another
accommodation request was closer proximity to restrooms and elevators to lessen the time he
needed for breaks. He stated that the Agency did not implement the request. Complainant stated
that his work location was the second furthest on the floor from restrooms and elevators and
management only moved him a few paces closer and offered to move him from an office to a
cubicle. Complainant declined management’s cubicle offer, stating that a cubicle was not
appropriate for his position and that he sometimes snored as he slept. He added that management
did not require other employees to move out of an office to accommodate him. Complainant stated
that he also requested telework.
Regarding claim (1), the OHO Group Supervisor (S1) stated that management terminated
Complainant’s employment for unacceptable performance and conduct in the office. S1 stated
that the Agency uses the Decision Writer Productivity Index (DWPI) to assess Attorney Advisor’s
productivity. S1 stated, as a new hire returning from training, management evaluated Complainant
on a learning curve – 20% of DWPI in September 2018, 35% of DWPI in October 2018, and 55%
of DWPI by November 2018. S1 stated that Complainant fell below the performance standards,
with 11.9% of DWPI, 15.9% of DWPI, and 27.3% of DWPI, respectively. Further, S1 stated that
Complainant was “combative” with mentors and unreceptive to constructive criticism and
feedback.

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The OHO Director (S2) added that the DWPI learning curve for December 2018 was 75% of
DWPI and Complainant was at 30.1% in December through his last day of employment, January
7. S2 stated that Complainant had interpersonal difficulties with mentors, support staff, managers,
and ALJs.
As to claim (2), S1 stated that the Agency was not required to lower production standards as an
accommodation. S1 stated that management allowed Complainant to take additional breaks, as
needed, but the additional breaks were unpaid. S1 noted, each 8.5-hour workday, employees were
entitled to two 15-minute breaks and a 30-minute lunch break.2 S1 stated that Complainant was
allowed to “flex in or out” liberally throughout the day to use additional unpaid breaks. S1 stated
that the Agency could not provide additional compensated breaks as employees had to account for
a full work tour. S1 stated that the liberal additional breaks should have been an effective
accommodation and compensated breaks would have only served to lower production standards
for Complainant. S1 stated that the Agency denied Complainant’s request to telework three times
per week as medical documentation did not support his request for telework. She stated further
that management offered Complainant any vacant office or cubicle, which included an office
adjacent to his office and a vacant cubicle closer to the restrooms and elevators. S1 stated that
Complainant refused both options. S1 stated that the Agency did not have to relocate another
employee out of an office to provide effective accommodation. Additionally, S2 stated that “flex
time” would allow Complainant flexibility in attaining an eight-hour tour of duty between 6:30
a.m. and 6:00 p.m. each day. S2 stated that Complainant’s requested accommodation of additional
compensated breaks would have allowed for a shortened workday but wages for a full workday.
S2 stated that Complainant was a new hire still in training so he was ineligible for telework until
July 22, 2019. S2 stated that new Attorney Advisers need physical access to ALJs, mentors, and
managers for the first year to develop well as decision writers. S2 stated that Attorney Advisor
offices are assigned based on seniority and the collective bargaining agreement in place.
In pertinent part, the investigative record contains the documents that follow.
- Letter dated October 5, 2018 from Complainant’s Internal Medicine Doctor
(D1) stating:
[Complainant] . . . is being treated for narcolepsy. Due to his difficulty
with wakefulness it is medically necessary for [Complainant] to take
work breaks for up to 15 minutes every hour while he is at work.
2 We note that the basic 40-hour workweek includes 8 hours per day with two 15-minute
compensated breaks (one in the morning and one in the afternoon) and an uncompensated 30-
minute lunch break. It can also be articulated as an 8.5-hour work day with two compensated 15-
minute breaks and a compensated 30-minute lunch break. For instance, an employee’s schedule
might include 9:00 a.m. arrival and 5:30 p.m. departure with the two compensated breaks and a
compensated lunch break during that time.

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- An email dated October 5, 2018 from S2 to Complainant, clarifying the
“flexing” policy. In the email, S2 stated, beyond his 15-minute morning and
afternoon breaks and a 30-minute lunch break, Complainant had to sign out and
back in to a database in real time to log his additional breaks.
- Letter dated October 26, 2018 from the Agency’s National Reasonable
Accommodation Committee (NRAC), denying Complainant’s request for
additional paid 15-minute breaks per hour. The NRAC stated that management
offered him “flexing” to take additional breaks as needed, but he would have to
make up the time to reach an 8.5-hour tour of duty.
- Letter dated November 14, 2018 from NRAC denying Complainant’s request
for additional paid 15- minute breaks and teleworking three days per week. The
NRAC reiterated that Complainant is allowed “flexing” with unpaid additional
breaks, and that Complainant failed to establish a nexus between the restrictions
of his disability and his request for teleworking. The letter also stated that
management allowed Complainant to move his workspace to be closer to
restrooms and elevators to reduce his breaktimes.
Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ). 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 him to
discrimination as alleged. Specifically, as to (1), the decision found that the Agency terminated
Complainant’s employment for unsatisfactory performance and conduct, and that Complainant
failed to show that the Agency’s action was based on discriminatory motives. For (2), the decision
found that the Agency provided Complainant accommodations to assist him with daytime
wakefulness and completing his full daily tour-of-duty.
The instant appeal from Complainant followed.
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. (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”).

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Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
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. See 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, non-discriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
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, non-discriminatory 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. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination
based on disability or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for
removing Complainant from Agency employment. The Agency stated that it terminated
Complainant’s employment for unacceptable performance and conduct. The Agency stated that it
uses the Decision Writer Productivity Index, DWPI, to assess Attorney Advisor’s productivity.
Management stated that Complainant was evaluated on a learning curve as a new hire recently out
of training. It stated that the learning curve was 20% of DWPI in September 2018, 35% of DWPI
in October 2018, 55% of DWPI by November 2018, and 75% of DWPI by December 2018. The
Agency stated that Complainant fell below the performance standards, with 11.9% of DWPI,
15.9% of DWPI, 27.3% of DWPI, and 30.1% of DWPI respectively. The Agency stated that it
was not required to lower production standards as an accommodation. Further, the Agency stated
that Complainant had interpersonal difficulties with mentors, support staff, managers, and ALJs.
We find that Complainant failed to show, by a preponderance of the evidence, that the articulated
reasons are a pretext for discrimination.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to
the known physical and mental limitations of a qualified individual with a disability unless the

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agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and
(p).
After receiving a request for reasonable accommodation, the employer should engage in an
informal process with the disabled individual to clarify what the individual needs and identify the
appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see
also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012).
Protected individuals are entitled to reasonable accommodation, but they are not necessarily
entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No.
01931005 (February 17, 1994).
Assuming, without finding, that Complainant is an individual with a disability within the meaning
of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to
provide him reasonable accommodation. Complainant stated that he has involuntary, unintended
daytime sleepiness due to Narcolepsy and Obstructive Sleep Apnea. Complainant stated that he
is sleepy multiple times per day and needs breaks to refresh his wakefulness. Complainant
acknowledged that management provided accommodations, but “not the accommodations [he]
was seeking.” Complainant stated that the Agency did not provide him additional breaks with
compensation, an office in closer proximity to the restrooms and elevators, or with telework.
Complainant provided a letter dated October 5, 2018 from his Doctor, D1, which stated;
“[Complainant] . . . is being treated for narcolepsy. Due to his difficulty with wakefulness it is
medically necessary for [Complainant] to take work breaks for up to 15 minutes every hour while
he is at work.” In addition to his two 15-minute breaks and lunch break daily, management
informed Complainant that he could take breaks as necessary throughout the workday.
Management required Complainant to sign in and out (flex) electronically as he took additional
breaks so that he would not be compensated for the extra breaks. However, he could work as
necessary to reach 8 work hours per day between 6:30 a.m. and 6:00 p.m. Complainant found
flexing in and out unreasonable and punitive. Complainant requested compensated break times
beyond the standard two work breaks.
Further, the Agency offered Complainant a vacant office adjacent to his office or a cubicle closer
to the restrooms and elevators in accordance with Complainant’s request so that he could take
breaks quicker. Complainant stated that the vacant office offered only put him a few paces closer
to the restroom and elevator, and a cubicle would be punitive to his Attorney Advisor position and
he sometimes snored while asleep. Complainant stated that the Agency did not move another
employee from a closer office. The Agency denied Complainant’s request to telework. The
Agency stated that Complainant was still within the training period for his position and still needed
close physical proximity to ALJs, mentors, and managers. Further, the Agency stated that there
was no nexus between his request to telework and his medical requirements.

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Based on the circumstances herein, we find that the Agency did not discriminate against
Complainant based on disability when it provided him with additional breaks as needed, but
without compensation. See EEOC’s Questions and Answers for Diabetes in the Workplace and
the ADA, Example 6 (May 15, 2013). Complainant was allowed to take breaks beyond the
standard two 15-minute breaks and 30-minute lunch break, but he had to make up the time he used
by arriving early, staying late, or using leave to equal a full work-day. Based on Complainant’s
medical documentation and the appellate record, the modified work schedule was effective and
appropriate. Id. Also, based on the record, an office closer to restrooms and elevators nor telework
were required to accommodate Complainant and there is no indication that such would have been
more effective. In fact, Complainant declined the Agency’s offer of an office a little bit closer and
a cubicle in greater proximity to restrooms and elevators. We remind Complainant that he is not
entitled to the accommodation of his choice. See EEOC Enforcement Guidance on Reasonable
Accommodation, question 9. “If there are two possible reasonable accommodations, and one costs
more or is more burdensome than the other, the employer may choose the less expensive or
burdensome accommodation as long as it is effective.” Id. We find that the additional breaks,
albeit without compensation but with the ability to make-up the time used, were a reasonable
accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission.

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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.

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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
May 5, 2020
Date