0120140512
09-26-2016
Arlette W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arlette W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140512
Hearing No. 430201200134X
Agency No. 200405582011101849
DECISION
On November 13, 2013, Complainant filed an appeal from the Agency's November 7, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) abused her discretion when dismissing Complainant's request for a hearing as a sanction, and ordering the Agency to issue a final decision. Whether the Agency discriminated against, and subjected Complainant to a hostile work environment, based on age, race, disability, and in reprisal for filing the instant EEO complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Ultrasound Sonographer at the Agency's Veterans Affair Medical Center in Durham, North Carolina. In late 2009, Complainant requested, and was granted, an ergonomic chair as a reasonable accommodation by her first line supervisor (S1) (59 years old, African American, no disability, prior EEO activity). Complainant had not received her chair by mid-January, and submitted a formal request to the Reasonable Accommodation Committee on February 21, 2010. Complainant learned that her chair had been ordered on January 19, 2010, which she received in March 2010.
In October 1, 2009, Complainant presented a new protocol for patient care to S1. Complainant implemented her project, and collected data to show that her protocol was working. In September 2010, Complainant learned that the project stopped, but resumed in January 2011. Complainant alleged that the project was given to a coworker (C1), and that she had been "cut out."
On April 26, 2010, the Assistant Administrative Officer (AAO) (52 years old, Caucasian, disability, no prior EEO activity) sent Complainant an email indicating that they missed a deadline to complete training. She replied that she had until April 30, 2010, to complete the training. On May 18, 2010, the AAO canceled an ultrasound that Complainant was scheduled to complete the next day. He stated that he routinely cancels ultrasounds for various reasons, and that patients are not assigned to specific technologists. S1 stated that the patient's doctor canceled the ultrasound because the patient was undergoing a procedure that was a higher priority.
On May 26, 2010, one of Complainant's patients completed a survey praising her services. Complainant stated that the AAO typically awards 59-minute time-off awards for employees who receive satisfactory survey cards. Complainant followed-up with the AAO, who stated that he never received the card. The AAO stated that he awards 30 minutes, not 59 minutes, and awarded Complainant 30 minutes.
On August 20, 2010,2 Complainant received an email stating that she had not completed the "MDRO" training. On September 23, 2010, the AAO asked for volunteers for an assignment. Complainant emailed to volunteer, and alleged that the AAO did not approve her response for overtime. The AAO stated that this request for volunteers did not involve overtime work.
In September and October 2010, Complainant suggested to S1 that the Agency buy covers for their computer keyboards. Complainant followed up with S1 in March 2011, when she did not receive a response. S1 informed Complainant that they would not be purchasing keyboard covers. S1 stated that the Agency was in the process of replacing their equipment, and that keyboard covers would be considered after they obtained new keyboards.
On October 30, 2010, Complainant underwent emergency surgery. When she returned to work, she spoke with S1 about requesting leave donation for another upcoming surgery. Complainant alleged that S1 stated that she would not get many donations, and suggested that she request advanced sick leave. Complainant also alleged that S1 informed her that she would need to submit medical documentation with details of her condition. Complainant initiated the process for the leave donation program, and learned that this documentation was not required. S1 stated that she informed Complainant about her options, including requesting advanced leave. She stated that she provided the forms for the leave donation program, but did not ask questions about her surgery.
On December 8, 2010, Complainant returned to work, and provided a note from her doctor restricting her from scanning patients; and from performing heavy lifting, and pushing. S1 presented Complainant with a light duty assignment. Complainant stated that she could do more, but that S1 stated that she could not perform the additional duties that she wanted to do.
On January 3, 2011, Complainant learned that S1 increased the requirement from 12 to 15 ultrasounds, and 30 abdominal aortic aneurysm (AAA) exams for Saturday overtime. S1 limited the Saturday ultrasounds to 30-minute studies.3 Complainant replied that she could perform 12 ultrasounds or 30 AAA, and S1 responded that ultrasounds were the priority for overtime work, not AAAs. Complainant alleged that the S1 "cut [her] off" from doing the overtime AAAs on January 22, 2011. A coworker (C2) (38, Caucasian, unknown disability status, unknown prior EEO activity) was the only sonographer who volunteered to perform 15 ultrasounds on Saturdays.
On January 11, 2011, Complainant escorted a patient to another section of the hospital. When she returned, the AAO stated that Complainant should not be walking the patients. He stated that her responsibility was to conduct scans; and that she should call for transport service, when needed. A few days later, the AAO and her second line supervisor (S2) (unknown age, unknown race, unknown disability status, no prior EEO activity) saw Complainant talking to a patient's family. They informed her that she spent too much time talking, and should focus her time on scanning. On February 18, 2011, Complainant escorted a patient to the cafeteria. When she returned, the AAO allegedly threatened to write her up for taking too much time with a patient.
In January 2011, S1 discussed mistakes that Complainant was making. Additionally, Complainant alleged that S1 stated that her workload was too small. On February 2, 2011, the AAO sent out a request for volunteers to work overtime. Complainant volunteered, and the AAO responded that he already had enough volunteers, but would keep her on a list. He also advised that the overtime work would require lifting heavy boxes, and asked if Complainant was capable of doing that. She replied that she had no lifting restriction, and to keep her on the list of available volunteers.
On May 4, 2011, Complainant wrote an email to the facility Director (D1) (unknown age, unknown race, unknown disability status, unknown EEO activity) regarding her concerns with the overtime assignments, and other issues. Complainant received his response on August 3, 2011, in which he stated that he understood that Complainant could not meet the standard for completing an AAA study in fifteen minutes. After additional correspondences, Complainant was approved to conduct AAA exams on Saturdays.
On May 4, May 16, July 7, and July 27, 2011, Complainant alleged that she was denied overtime. In May 2011, the AAO requested volunteers for a scanning project, which required them to scan twelve charts in three hours. Complainant volunteered, and during her first attempt, scanned one chart in three hours, and in her second attempt, scanned two charts in three hours. On or about May 17, 2011, Complainant spoke with S2, who informed her that if she could not meet the minimum of twelve in three hours, she would be removed from the project. The AAO learned that Complainant complained that she was removed from the project, and S2 allowed her to scan again. Complainant stated that she believed that scanning twelve charts in three hours was not reasonable, and did not scan twelve. The other volunteers on the project scanned 18-20 charts in three hours.
On June 17, 2011, Complainant was on-call, and received a page to attend to a patient. The pager was set on vibrate, and she did not hear it. S1 reached Complainant two hours later, who then came to work. On June 20, 2011, S1 informed Complainant that she needed to meet with her and her union representative. Complainant preferred a representative in another location, and requested the representative's attendance via teleconference. S1 did not allow the teleconference, and the meeting was held with a different union representative. S1 issued Complainant a Letter of Counseling on August 25, 2011.
On August 22, 2011, S2 requested to speak with Complainant about the letter she sent to the D1. Complainant alleged that S2 stated that she needed to put an end to her complaints, at which point, she walked away from the discussion. The next day, Complainant emailed S2 informing him that the next time he wanted to speak with her, she wanted to have a union representative present. On August 25, 2011, the parties met, and S2 informed Complainant that she was approved to conduct AAA exams on Saturdays.
On May 20, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her when it subjected her to a hostile work environment on the bases of race (Caucasian), disability (low back and posterior neck pain), and age (64) when:
1. From October 2009 through March 18, 2010, S1 delayed approval of her request for an ergonomic chair to conduct examinations;
2. On April 26, 2010, the AAO erroneously informed her that she failed to meet an April 30, 2011, training deadline;
3. On May 18, 2010, the AAO cancelled an order for an examination to be conducted by her on May 19, 2010;
4. On May 26, 2010, she did not receive a 59-minute time off award for superior care, as reported in a patient survey;
5. On August 20, 2010, she received a memo stating that she failed to complete the MDRO course;
6. In September 2010, S1 allegedly failed to provide final approval for the implementation of her new patient care program;
7. On September 24, 2010, the AAO failed to approve her request for volunteer for overtime work;
8. On October 4, 2010, S1 failed to acknowledge her employee suggestion regarding a the keyboard covers;
9. On November 22, 2010, S1 required her to disclose her diagnosis after surgery, and encouraged her to request advanced leave versus donated leave;
10. On December 8, 2010, S1 refused to allow her to perform assigned duties (patient scan), and required her to sign a notice of light duty until her return to full duty on December 31, 2010;
11. In January 2011, S1 removed her from her project, and referred it to C1, and failed to acknowledge her accomplishment;
12. In January 2011, management increased the workload requirement for overtime from 12 to 15 patients per eight hour overtime period;
13. From January 5, 2011, through February 7, 2011, management denied her approval for overtime, and granted overtime for African-American employees;
14. From January 11, 2011, through February 18, 2011, the AAO verbally chastised her for providing patient escort services instead of working, and threatened to write her up;
15. On January 13, 2011, S1 informed her that her performance was inadequate;
16. On January 22, 2011, management cancelled approval for overtime work on Saturdays, and refused to let her work overtime;
17. On February 11, 2011, the AAO failed to respond to her offer to volunteer to work overtime; and
18. On June 24, 2011, she was written up by S1 for failure to respond to a page on June 17, 2011.4
Complainant also alleged that she was discriminated against when she was subjected to a hostile work environment based on reprisal for filing the instant EEO case when:
19. On May 4, 2011, and July 7, 2011, management failed to respond to her inquiry regarding management's refusal to allow her to schedule overtime, harassment by the AAO regarding excessive patient care requirements, and management's request for diagnostic medical documentation to facilitate approval for her participation in the leave donation program;
20. On May 16, 2011, the AAO failed to approve her overtime request, as offered to her coworkers;
21. On May 17, 2011, the AAO required her to process an excessive workload to scan twelve patient charts in three hours or face termination from the program;
22. On June 21, 2011, she was not allowed union representation at a meeting regarding the June 17, 2011 incident;
23. On July 27, 2011, management officials failed to approve her for weekend overtime work on Saturday;
24. On August 3, 2011, she received correspondence from the D1, dated May 31, 2011, that she was unable to appropriately perform a specific task in a timely manner;
25. On August 22, 2011, S2 harassed her when he removed her from patient care in order to confront her; and
26. On August 25, 2011, she received a letter of counseling.
In addition to her claims of harassment, Complainant alleged disparate treatment based on her age, disability, and race for claims 11, 12, 13, 15, 16, and 17. She also alleged disparate treatment based on reprisal for claims 20, 22, 23, and 26.
At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ); Complainant requested a hearing. On April 29, 2013, the AJ issued a Revised Scheduling Notice and Order instructing the parties to submit their pre-hearing reports by noon on July 9, 2013. The Order also specifically outlined the requirements of the pre-hearing reports. Complainant submitted her pre-hearing report at 5:55pm on July 9, 2013. On July 10, 2013, the AJ issued a sanction to dismiss Complainant's request for a hearing due to non-compliance with her order. The AJ found that not only was Complainant's pre-hearing report untimely, it did not properly identify the issues; and it did not identify her damages, or include evidence of her damages. The AJ remanded the complaint to the Agency to issue 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.
As an initial matter, the Agency dismissed claims 2, 3, 4, 5, 6, 7, and 10, as discrete acts of alleged discrimination for untimely contact with an EEO counselor. The Agency noted that these events would only be considered as part of Complainant's hostile work environment claim.
The Agency assumed, without finding, that Complainant had established a prima facie case of discrimination based on race, age, and reprisal. The Agency found that Complainant had established a prima facie case of disability discrimination. The Agency then found that management officials provided legitimate, non-discriminatory reasons for their actions.
For claim 11, S1 stated that Complainant's suggestion was implemented; and that this project was included in her performance evaluation. In regards to claim 12, the AAO stated that there was a backlog in ultrasounds, and that to reduce the backlog, management officials decided that only ultrasounds that took 30 minutes were to be scheduled on Saturdays. This increased the number of ultrasounds performed from 12 to 15 within an eight hour shift. S1 stated that Complainant informed her that she was uncomfortable performing more than 12 ultrasounds and that when those overtime opportunities arose, Complainant did not volunteer.
For claim 13, S1 stated that Complainant volunteered to perform AAA studies, which are not complex, and not a priority. S1 stated that Diagnostic Technicians learned how to perform AAA exams to free up sonographers for more complex work. S1 stated that she did not prevent Complainant from conducting AAA exams, but that there were not enough requests to justify an AAA clinic on the weekends. In response to Complainant's claim that overtime was disproportionately given to African-Americans, the AAO stated that only C2 had more overtime hours than Complainant, and that was due to the fact that he volunteered to perform 15 ultrasounds on Saturdays, while Complainant declined. The Agency found that the record showed that Complainant worked 217.63 hours of overtime in fiscal year 2011, while the African American employees worked 197.5 and 153.3 hours. Additionally, Complainant worked 252.7 overtime hours in fiscal year 2010, as compared to 136.5 and 227.5 overtime hours for the African American employees.
In regards to claim 15, S1 stated that when radiologists complained about the quality of Complainant's ultrasound images, she addressed it with her. S1 stated that Complainant was upset when she informed her about the complaints, but offered to send her to training, and to work with a senior technologist. For claim 16, the S1 stated that she believed that this claim referred to the "file room project." In response, the AAO stated that the overtime work required lifting heavy boxes, and he asked Complainant if she would be able to handle that work because she was recently on a light duty assignment. When Complainant responded that she had no lifting restriction, the AAO informed her that he had no more available spots. For claim 17, the AAO stated that he kept a roster of volunteers; and that he contacted them in the order in which they responded to his request for volunteers.
For claim 20, the AAO stated that this overtime opportunity was to work at the front desk. He stated that while sonographers had an opportunity to work overtime on the backlog of ultrasounds, the administrative staff did not have as many opportunities to work overtime. The AAO stated that since Complainant had other projects that allowed her to work overtime, he did not assign her overtime for administrative duties to allow others an opportunity to work overtime. For claim 22, S1 stated that Complainant was allowed to have a union representative, but that it was not a representative of Complainant's choosing.
For claim 23, the Agency noted that it did not obtain a response from Complainant's managers, but that the record contained an email chain between Complainant and the D1. Complainant expressed her concerns regarding the change in the ultrasound requirements, and the "unfair" distribution of overtime work. After Complainant assured the D1 that she would be able to perform 30 AAA exams, the D1 authorized the approval of her overtime. For claim 26, S1 stated that she issued Complainant the counseling letter because she did not respond to a page on June 17, 2011. In response to Complainant's allegation that she was treated differently than two other employees who also did not respond to their pages, the S2 stated that their situations were different because their patients were not emergency patients, like Complainant's.
The Agency then found that Complainant had not shown that the proffered reasons were pretext for discrimination. For example, Complainant argued that the 15 ultrasound requirement was not a true requirement because C2 never completed 15 during his shift. However, the S1 stated that 15 ultrasounds were scheduled for Saturdays, and that if C2 performed fewer than 15 ultrasounds, it was due to cancellations. Additionally, while the Agency noted a temporal proximity between Complainant's EEO activity and the issuance of the counseling letter, it cited University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct 2517 (2013), and found that Complainant had not shown that the alleged retaliatory action would not have occurred "but for" her participation in the EEO activity.5 The Agency concluded that Complainant's own testimony was insufficient to show that management's decisions were discriminatory.
In regards to Complainant's hostile work environment claims, the Agency found that she had not shown that the all the complained of actions were sufficiently severe or pervasive to rise to the level of a hostile work environment; and that there was no evidence that the alleged harassing conduct was related to any of Complainant's protected classes.
Complainant filed the instant appeal and submitted a brief in support of her appeal on November 31, 2013. The Agency filed a response on February 10, 2014, asking the Commission to affirm its final decision.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the record does not contain all of her issues and documentation because her then attorney did not file them with her pre-hearing report. Complainant alleges that she had to request an ergonomic chair repeatedly before obtaining one, and that her chair broke in 2010. She requested to have it repaired, but while waiting, she fell from her chair and injured herself. Additionally, Complainant argues that since she filed the instant EEO case, the harassment has gotten worse. Specifically, she states that the D1 informed her that she was no longer able to perform "special exams" on Saturdays.
The Agency stated that it did not receive Complainant's statement, but argues that Complainant has not shown by a preponderance of the evidence that the Agency discriminated against her.
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 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").
ANALYSIS AND FINDINGS
The Commission notes that AJ's have broad discretion in the conduct of hearings, including sanctioning parties for not complying with orders. See 29 C.F.R. � 109. Upon review of the record, we find that the AJ properly dismissed Complainant's request for a hearing as a sanction. While we note that Complainant's attorney's actions resulted in the dismissal of her hearing, Complainant is at all times responsible for the prosecution of her discrimination case, whether or not she has a representative. 29 C.F.R. �1614.605(e). In Complainant's case, the AJ decided that her deficient pre-hearing report warranted a dismissal of a hearing, and remanded the case back to the Agency for a final decision. We find that Complainant has not shown that the AJ abused her discretion when dismissing her hearing request, accordingly, we concur with the AJ's dismissal of Complainant's hearing request.
It is also unclear if Complainant is alleging that the Agency discriminated against her on the basis of disability when it allegedly failed to provide a reasonable accommodation of an ergonomic chair. However, this decision will not address that claim because the Commission cannot address an issue raised for the first time on appeal.6
Dismissal of claims
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (August 5, 2015). We note that on appeal, Complainant did not contest the Agency's dismissal of claims 2, 3, 4, 5, 6, 7, and 10; as such, we AFFIRM their dismissal and will not address these issues as discrete acts in this decision, we will only consider them as part of Complainant's hostile work environment claim.
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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 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 had established a prima facie case of discrimination based on age, disability, race, and reprisal for her EEO activity; we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. In addition to the reasons discussed above in the Agency's final decision, for claim 11, S1 stated that C1 was a technologist, who did not perform ultrasounds, and that she did not know what Complainant meant when she alleged that her project was given to C1. For claim 12, S1 stated that she was instructed to bring down the backlog, and the increase to 15 ultrasounds on Saturdays was in response to an Agency mandate. In regards to Complainant's overtime denials in claims 13, 16, 20, and 23, the AAO stated that when he sends out emails for volunteers for overtime, this is sent out to approximately sixty employees. Additionally, the AAO stated that the volunteers are normally chosen to work overtime on a first come, first served basis.
For claim 16, we note that the Agency addressed this claim as the incident when the AAO requested volunteers to perform work involving heavy lifting. However, a review of Complainant's statement shows that this claim actually related to S1's alleged denial of Complainant's overtime for AAA exams. In response, S1 stated that she did not stop Complainant from working overtime on AAAs, but that the AAA clinics stopped because the demand did not support its need on the weekend.
For claim 22, S1 stated that she did not allow Complainant's representative of choice to call in because S1 would not know who would be on the other end of the phone call. Additionally, S1 stated that the union representative needed to come from their location first, and that a representative was provided to Complainant.
For claim 26, S1 stated that she did not issue the counseling letter for the June 17, 2011 incident until August 25, 2011 because she was working with the Office of Human Resources, and had to wait for their guidance and feedback. S1 stated that she issued Complainant the counseling letter to communicate the seriousness of her actions. S1 stated that an emergency patient had to wait over two hours for Complainant, and that this was not her first incident of not responding to a page in a timely manner.
On appeal, Complainant states that she has a lot of documentation to prove discrimination. However, she did not provide this documentation with her appeal, and it is unclear if any of this documentation is already contained in the record because she did not identify the documentation. A review of the record does not show documentation to support a finding of discrimination based on age, race, disability, and in reprisal for protected EEO activity. As such, we find that Complainant has not shown that the management officials' proffered reasons were pretext for discrimination, or that their actions were discriminatory.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
In regards to Complainant's allegation that she was subjected to a hostile work environment, we find that, even assuming, arguendo, that the events occurred as Complainant described and were unwanted, she has not shown that the conduct occurred because of her protected classes. We find that many of the instances of alleged harassment were related to Complainant's requests for overtime, her job duties and workplace conditions, which also applied to the other employees who held the same position. On appeal, Complainant alleges that the harassment has gotten worse, and states that she was informed that she was unable to perform "special exams." Complainant also discusses her past experiences with her ergonomic chair. However, she has not shown that any of these incidents were due to her protected bases, beyond her own assertions.
Additionally, Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the conduct was sufficiently severe or pervasive that it resulted in a hostile work environment based on her age, race, disability, or in reprisal for protected EEO activity.
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 dismissing claims 2, 3, 4, 5, 6, 7, and 10; and finding that Complainant was not discriminated against, or subjected to a hostile work environment, based on her age, race, disability, or in reprisal for protected EEO activity.
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).
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
__9/26/16________________
Date
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 indicated that this event occurred on April 20, 2010, but corrected the date to August 20, 2010.
3 The ultrasounds varied in length from 30 minutes, to one hour.
4 The record shows that this occurred on August 25, 2011, which is identical to claim 26.
5 In Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. � 623).
6 We note that Complainant raised this issue in her pre-hearing report. However, the record shows that this incident was only included as a part of her harassment allegation, and not as a separate claim of alleged discrimination. To the extent that she is alleging that she was denied an accommodation, we find that she was not denied an accommodation because she was provided with the requested ergonomic chair in a reasonable amount of time. In regards to an allegation that Complainant was harassed during the processing of her request, we will address that as part of her harassment claim.
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