Adena J.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Mar 9, 2018

0120160494 (E.E.O.C. Mar. 9, 2018)

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

Adena J.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120160494

Agency No. GSA-15-NCR-WP-0011

DECISION

On November 10, 2015, 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
October 15, 2015, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Building Analyst,
GS-0343-12, with the General Services Administration (GSA), Potomac Service Center (PSC),
within the Public Buildings Service (PBS), National Capital Region (NCR), located in
Washington, D.C. On December 29, 2014, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (African-American), sex (female),
disability (lung surgery and bilateral knee surgery), and reprisal (prior protected EEO activity)2
when: (1) when on September 3, 2014, her supervisor refused to grant her request to be moved
after she complained about how the poor air quality affects her breathing; and (2) on or about

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.
2 Complainant initially raised religion as a basis of discrimination, but subsequently withdrew
this basis.
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September 30, 2014, she was issued a Level 3 performance rating. The record indicates that on
May 13, 2015, Complainant requested to amend her complaint to include a claim of constructive
discharge when she was forced to retire effective February 28, 2015. The Agency dismissed this
claim based on untimely EEO contact in accordance with 29 C.F.R. §§ 1614.105(a)(1) and
1614.107(a)(2).3

After 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). In accordance with Complainant’s request, 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.

FACTUAL BACKGROUND

The record shows that Complainant had lung surgery on January 10, 2011, and bi-lateral knee
surgery on April 9, 2012. Complainant identified two prior instances of protected EEO activity
occurring in 2005 and 2008. From March 9, 2014 to July 5, 2014, the Building Management
Specialist (S1A) was Complainant’s first-line supervisor. From September 1, 2014 until
February 28, 2015, the Operations Coordinator (S1B) was Complainant’s first-line supervisor.
S1B was also Complainant’s first-line supervisor during a 120-day detail he served starting on
September 18, 2013. During the relevant time-frame, the Director of PSC (S3) was
Complainant’s third-line supervisor.

The record shows that on September 5, 2014, Complainant sent an email to the Regional
Administrator, NCR (RA) that expressed a connection between her proposal to move to Room
6905 of the PSC and breathing problems she was experiencing. The record shows that on
September 17, 2014, Complainant met with S3. In that meeting, S3 outlined the Agency’s
position with respect to Complainant’s proposal to move to Room 6905 of the NCR building.
The record also shows that on or about September 30, 2014, S1A issued Complainant a Level 3
rating on her performance appraisal.

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

3 Complainant raised no challenge to the Agency's dismissal of the constructive discharge claim
on appeal; therefore, the Commission will not address this claim further herein.

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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Claim 1 - Office Relocation Request

We agree with the Agency in concluding that Complainant fails to establish that she was denied
a reasonable accommodation.4 The record shows that Complainant requested a reasonable
accommodation when she sent an email to RA on September 5, 2014, stating that she had lung
surgery two years prior, was bothered by mold and smells in her then-current cubicle, and
requested to relocate to Room 6905 which was located on the same floor.

S3 testifies that while Complainant’s second-line supervisor (S2) had initially approved
Complainant’s move to Room 6905 as a new worksite, it was not his place to make such a
determination. S3 further testified that on September 10, 2014, she was informed by S2 that
Complainant was looking for a mobility workspace in lieu of her desired location of Room 6905.
In her response to S2 on September 11, 2014, S3 stated that Complainant could sit in front of her
assistant, until a place was found for her, but that she did not approve of Complainant sitting in
another division’s space on the 6th floor.

The record shows that in a subsequent meeting with Complainant on September 17, 2014, S3
indicated that while she did not approve of Complainant’s proposal to move to Room 6905, she
offered to allow Complainant to move to mobility spaces on the 1st and 7th floors as well as
offered her approval for her to use the Book-It system to access mobility spaces when working in
the building. According to S3, Complainant declined these options and indicated that her
preference was to remain in her assigned space in Room 6049 rather than in the offered
locations.

While the Rehabilitation Act mandates that qualified individuals with a disability be granted an
effective reasonable accommodation, it does not entitle them to the accommodation of their
choice. See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17,
1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002).
Additionally, in participating in the interactive process, the agency and the employee are
expected to engage with each other to identify the main causes of the need for an accommodation
to address them in the solution to which they agree. See 29 CFR § 1630.2(o)(3)(4).
S3 testified that she did not approve of any PSC employee moving from PSC workspace into
another division due to a building consolidation project and a need to know the location of PSC
employees by supervisors and managers. S3 also explained that on September 17, 2014, she

4 We agree with the Agency that Complainant has established that she is a qualified individual
with a disability within the meaning of the Rehabilitation Act. Accordingly, we refrain from
duplicating the analysis provided in the Agency’s final decision with respect to this threshold
issue.
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informed Complainant that she should have sought S1B’s approval regarding her move to a new
workplace and should not have taken it upon herself to change workspaces.5

The undisputed record shows that S3 provided Complainant with alternatives to the
accommodation requested which Complainant rejected. The Agency notes that Complainant
does not assert that such proposed alternative workspace options failed to serve as effective
reasonable accommodations. The record shows that a follow-up meeting was set for October
21, 2014 to further discuss the accommodation issue but Complainant declined to attend the
meeting and voluntarily disengaged from the interactive process by not wanting to further
discuss alternatives to her original accommodation request. We agree with the Agency that the
preponderance of the evidence establishes that management fulfilled its obligation of
participating in the interactive process by engaging in direct discussions with Complainant about
accommodation options.

With respect to Complainant’s disparate treatment claim, we find that S3 articulated legitimate,
non-discriminatory reasons for the decision to deny Complainant’s request to relocate her office
(i.e., at the time Room 6905 was outside of the purview of the PSC). We find Complainant
failed to present sufficient evidence of pretext or discriminatory animus with respect to this
claim.

With respect to Complainant’s reprisal claim, the record shows that she filed an informal EEO
complaint that was mediated on October 27, 2005.6 In addition, we agree with the Agency that
Complainant also engaged in protected EEO activity in March 20147 and in September 2014
when she requested reasonable accommodations. The record further shows that both S1B and S2
were aware of Complainant’s prior EEO activities. However, we do not find a causal connection
between such prior EEO activity and any adverse action.

We also agree with the Agency in concluding that the record does not support the finding that
management’s actions in this instance were likely to deter protected activity. As noted above,
we find that the Agency did not deny Complainant’s request to move to a different workstation
but instead engaged in the interactive process to provide Complainant with a reasonable
accommodation. Moreover, denying Complainant’s request to sit in an office outside the
division where no similarly situated employee from Complainant’s branch sits has not been
shown to be materially adverse or likely to deter Complainant from protected EEO activity.8 We

5 The record shows that the Director did not have a problem with the move, but was not the
management official that should have been involved in such decision-making.
6 Complainant also asserts that she engaged in a union grievance in 2008. However, the record
does not support the fact that such grievance involved any EEO matter.
7 Complainant requested and received a reasonable accommodation in March 2014 for bilateral
knee replacement surgery. Complainant was permitted to telework during her recovery period.
8 We note that the record shows that S1B denied Complainant’s request to move offices on
September 3, 2014, prior to Complainant’s letter to RA on September 5, 2014. The record shows
that Complainant did not link her September 3, 2014 request (to S1B) to change offices with her
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also find that the Agency articulated legitimate, non-retaliatory reasons for denying
Complainant’s request to move to Room 6905, which Complainant has failed to show was a
pretext for retaliatory animus.

Claim 2 – Performance Appraisal

We assume for the purposes of this decision that Complainant established a prima facie case of
discrimination and retaliation. However, we find that the Agency articulated legitimate, non-
discriminatory reasons for its employment action that have not been shown to be pretext or
otherwise motivated by discriminatory/retaliatory animus.

Specifically, we note that the record shows that S1A is the management official who issued
Complainant’s Level 3 performance appraisal during the relevant time-frame. S1A asserts that
he outlined his expectations for Complainant’s work in her mid-year performance evaluation.
The preponderance of the evidence shows that S1A notified Complainant mid-year that she was
performing very well with the Building Emergency Support System duties that had been
assigned to her. The record shows that S1A advised Complainant that she needed to get more
involved with other program areas and work more in Microsoft Excel to achieve a Level 4 rating.

However, according to S1A, on numerous occasions when he asked Complainant to perform a
task using Microsoft Excel, she responded that she did not “do spreadsheets.” S1A also testified
that he assigned Complainant an “overdue invoice” project. However, he stated that
Complainant sent multiple emails on August 6, 2014 that were supposed to contain an
attachment, and even though he reminded Complainant that she needed to send an attachment,
she failed to do so. We note that the record shows that Complainant had difficulty in following
S1A’s instructions for sending out the attachment in the emails that she sent for the overdue
invoice project.

S1A further claims that he alone made the decision to issue Complainant a Level 3 performance
rating and Complainant’s race, sex, disability, or prior EEO activity had nothing to do with his
decision. S1A asserts that while he was in the process of writing Complainant’s performance
evaluation, he consulted S2 about the status of the project involving the straightening out of
overdue invoices that S1A initially assigned to Complainant while he was still her supervisor.
According to S1A, S2 informed him that Complainant was unable to complete the task and S2
had to assign the task to another employee. S1A further disputes Complainant’s assertion that S2
instructed S1A to issue her a Level 3 rating. Rather, S1A testifies that he only consulted S2
regarding the status of the invoice project that she was assigned. S1A also testifies that he spoke
with S1B (who became Complainant’s first-line supervisor for the last month of the rating
period) for general information about her to inform his own assessment of her work.

medical condition and has not shown that S1B’s explanation for denying the move to Room
6905 to be motivated by retaliatory animus or likely to deter protected EEO activity. In addition,
we find the alleged hostile reaction by S1B and/or S3 was not shown to be related to
Complainant’s request, but her failure to follow the chain of command in making such request.
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Complainant asserts that African-American females are generally discriminated against and not
allowed to professionally advance in the PSC. However, two of the alleged comparators
identified by Complainant who received higher performance ratings are also African-American
females. Moreover, the record does not support the finding that the identified comparators were
substantially similar to Complainant.

Complainant further asserts that she was intentionally removed from the outstanding invoice
project that could have given her the opportunity to achieve a higher performance rating.
Complainant asserts that this was done by S1A in retaliation for her reasonable accommodation
communication with RA. The record shows that Complainant communicated with RA on
September 5, 2014 and S1A issued the performance appraisal on September 30, 2014. The
record is unclear as to when S1A removed Complainant from the project. However, the record is
devoid of evidence that S1A was aware of Complainant’s communication with RA or that the
decision to remove Complainant from the invoice project or issue her a Level 3 rating on her
performance appraisal was influenced by anyone other than S1A.

CONCLUSION

Accordingly, 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 which
concludes that Complainant has not established discrimination or retaliation as alleged.

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
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Commission. 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.

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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

March 9, 2018
Date