0120140173
09-02-2016
Casandra N.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Casandra N.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120140173
Agency Nos. FS201200862
FS201200625
DECISION
On October 28, 2013, Complainant filed an appeal from the Agency's September 30, 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., 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.
ISSUES PRESENTED
Whether the Agency discriminated against, and subjected Complainant to a hostile work environment based on disability, and in reprisal for prior EEO activity when it denied her request for a reasonable accommodation; issued her a Letter of Instruction (LOI); requested "excessive" medical documentation; denied her requests for leave under the Family and Medical Leave Act (FMLA); rejected her proposed Individual Development Plan (IDP); did not select her for a Management Analyst position; attached documents to her performance plan and evaluation; reassigned her; denied her request for written processes and procedures; "required" her to take leave while her computer was being repaired; and untimely provided information for a work assignment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at the Agency's Forest Services in Washington, D.C. In 2008, Complainant was granted the ability to work full-time from home as a reasonable accommodation. Complainant was mostly supervised by first line supervisor (S1) (no disability, prior EEO activity), but another supervisor (S2) (no disability, prior EEO activity) acted for S1 April 5-8, April 16-May 18, and June 18-21, 2012.
On February 2, 2012, Complainant requested a reasonable accommodation of a maxi-flex work schedule. S1 forwarded Complainant's request to the Agency's Mission Area Designee (MAD) (disability, no prior EEO activity) for a recommendation. On April 26, 2012, based on the MAD's recommendation, S1 denied Complainant's requested accommodation because her job duties required that she work with others, who worked Monday through Friday. As an alternative, Complainant was offered a compressed work schedule to accommodate her Friday doctor's appointments.
On or around April 19, 2012, Complainant applied for a Management Analyst position. The selecting official (SO) (no disability, no prior EEO activity) and the approving official (AO) (no disability, no prior EEO activity) reviewed the forty-seven applications, and chose the top twenty applicants for further consideration, which included Complainant. Interviews were not conducted, but references were checked for the twenty applicants. The Performance Management Branch Chief (PMBC) (no disability, no prior EEO activity) spoke with Complainant's references, including S1; and did not recommend Complainant for further consideration. On August 2, 2012, Complainant learned that she was not selected for the position; and did not know who was selected for the position.
On May 1, 2012, Complainant submitted a request for FMLA leave. On May 25, 2012, an Employee Relations Specialist (ERS) (disability, prior EEO activity) informed Complainant that her request did not meet the requirements for FMLA leave because, among other things, Complainant's physician did not elaborate on how her flare-ups were related to absences from work. Complainant provided additional medical information on May 30, 2012. On June 13, 2012, the ERS informed Complainant that her entitlement to FMLA leave was substantiated, but that her use of FMLA leave would need to be approved by her supervisor.
On May 24, 2012, S1 issued Complainant an LOI regarding her work schedule, leave procedure, and telework. S1 informed Complainant that she: (1) needed to select a work schedule; (2) reminded her to request non-emergency in advance, notify her supervisor at the start of the day of any emergency or unplanned leave, and provide medical documentation in support of sick leave; and (3) instructed her to sign her telework agreement within fifteen calendar days. Complainant chose a work schedule of 6:30am to 5:00pm, Monday through Thursday, on May 30, 2012.
On June 19, 2012, Complainant requested leave without pay (LWOP) for June 21, 2012. S2 denied the request because Complainant did not indicate that the LWOP was FMLA leave. Complainant resubmitted her request, but changed her request to annual leave. On July 31, 2012, S1 rejected Complainant's IDP because the plan did not provide specific details.
On August 13, 2012, S1 and Complainant met to discuss her performance appraisal. With her appraisal, S1 attached a document outlining areas of improvement. For example, S1 noted that Complainant did not implement projects or programs within established timeframes; did not ensure that information reported was adequate, reliable, verifiable, or useful; and did not routinely accomplish assignments in compliance with guidance. Also on August 13, 2012, S1 started a detail assignment, and another supervisor (S3) (no disability, prior EEO activity) acted in her absence.
On August 15, 2012, Complainant was notified through her electronic official personnel file that she had been reassigned to Business Operations in November 2011. On October 24, 2012, Complainant had issues with her computer, and needed to get it repaired. On October 31, 2012, she sent S3 an email regarding her time, who responded that she did not have work for her, but that she could ask other staff members to provide work; Complainant did not respond. On November 1, 2012, Complainant submitted a leave slip, and S3 offered to defer some of the leave; Complainant did not respond.
On November 15, 2012, S3 provided Complainant with her fiscal year (FY) 2013 performance plan. With the plan, S3 attached a document which provided detailed information for achieving the various levels of performance. On January 9, 2013, S2 emailed Complainant giving her an assignment to complete a report, due by noon on January 11, 2013. Complainant submitted the report on January 15, 2013.
On July 30, 2012, and on October 3, 2012, Complainant filed formal EEO complaints, which were consolidated. Complainant alleged that the Agency discriminated against her on the bases of disability (reactive airway disease), and in reprisal for filing five prior EEO cases when:
1. on April 26, 2012, her request for a reasonable accommodation was denied;
2. on May 24, 2012, she was issued an LOI;
3. beginning on or about May 25, 2012, and continuing, management required her to provide excessive medical documentation when she requested FMLA leave; and
4. on June 19, 2012, her request for FMLA leave was denied.
Complainant also alleged that she was discriminated against, and subjected to harassment, based on reprisal for prior EEO activity when:
5. on July 31, 2012, S1 rejected her proposed FY2012 IDP;
6. on August 2, 2012, she learned that she was not selected for the Management Analyst position, advertised under Vacancy Announcement Number 12-5100-1601G-KK-REL2;
7. on or about August 11, 2012, S1 attached a document that had the appearance of a Performance Improvement Plan to her Fully Successful FY2012 Performance Appraisal;
8. on or about August 15, 2012, she learned that she had been reassigned to the Business Operations unit back in October 2011;
9. on or about August 16, 2012, management denied her request for written processes and procedures to assist with her training;
10. on or about October 24, 2012, S3 required her to take leave while her computer was being repaired;
11. on or about November 15, 2012, she received a supplemental attachment to her FY2013 Performance Plan; and
12. on January 9, 2013, and on other occasions, she untimely received information from coworkers that she needed to complete work assignments, along with unreasonable managerial requests for the work to be completed within short timeframes, even though management was aware that the information had been provided late.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency found that Complainant had established a prima facie case of disability discrimination for claim 1. For claims 2, 3, and 4, the Agency found that Complainant had not established a prima facie case of discrimination based on disability, or reprisal. The Agency also found that Complainant had not established a prima facie case of reprisal discrimination for claims 5, 6, 8, 9, and 12. The Agency found that Complainant had established a prima facie case of reprisal discrimination for claims 7, 10, and 11.
The Agency then found that management officials articulated legitimate, non-discriminatory reasons for their actions. For claim 1, S1 denied Complainant's requested accommodation because a flexible work schedule would not meet the requirements of her position. Additionally, the Agency found that Complainant was accommodated because she was offered a compressed work schedule that would allow her to attend her Friday doctor's appointments. In response to claim 2, S1 stated that she issued Complainant the LOI, which was not punitive, because she had not followed instructions that had been previously provided to her. S1 stated that Complainant was inconsistent when requesting leave; did not sign her telework agreement; and there was continuous confusion surrounding her work schedule. For claim 3, S1 stated that Complainant was not required to provide excessive medical documentation, and that the ERS informed Complainant of the documentation she would need to provide. The Agency noted that the requirements for requesting FMLA leave were different than for regular sick leave. In regards to claim 4, S2 stated that she denied Complainant's FMLA leave because she had not indicated that her request for leave was FMLA. The Agency also found that Complainant's leave slip did not indicate that she requested FMLA leave.
Regarding claim 5, S1 stated that she sent Complainant instructions for completing the IDP on April 15, and 18, 2012, but that she did not submit her plan according to the instructions. For claim 6, the AO stated that Complainant was not selected for the Management Analyst position because she submitted a poorly prepared application; and provided out of date references, including a reference who did not even know her.
For claim 7, S1 stated that she attached the additional document to state her concerns regarding Complainant's performance. In response to claim 8, S1 stated that Complainant, and other staff members from the Office of the Chief Financial Officer, were realigned to the Deputy Chief budget organization. For claim 9, S1 stated that when Complainant requested written processes and procedures, it was provided to her. S1 also stated that on-the-job training was provided by other staff members, and that she instructed Complainant to document the information she received by them.
For claim 10, S3 stated that she gave Complainant an opportunity to perform other work that did not require a computer, and that she did not respond. S3 stated that Complainant submitted a leave slip; and that she offered to defer some of the leave, but that Complainant did not respond, and chose the appropriate time code. In regards to claim 11, S3 stated that she provided the supplemental documentation to all her employees. S3 stated that she provided them with information for achieving various performance levels for FY2013. For claim 12, S3 stated that it was not unusual or unexpected for staff members to provide reports in a short timeframe, and that she gave Complainant the assignment as soon as practicable. The Agency found that Complainant had not shown that the proffered reasons were pretext for discrimination.
For Complainant's harassment allegation, the Agency found that Complainant was not subjected to unwelcome personal slurs, or other denigrating or insulting verbal or physical conduct based on her protected class. Accordingly, the Agency concluded that Complainant had not shown that she was discriminated against, or subjected to a hostile work environment based on disability, or in reprisal for her prior EEO activity.
Complainant filed the instant appeal, but did not submit a brief in support of her appeal. The Agency filed an opposition brief on April 24, 2014, requesting that the Commission affirm its final decision.
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
Failure to Provide Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
While we note that the Agency analyzed Complainant's denial of a reasonable accommodation as a disparate treatment claim of discrimination based on disability, this decision will analyze the claim under the theory of disability discrimination for failure to provide a reasonable accommodation. Assuming, arguendo, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to provide her with a reasonable accommodation.
On April 26, 2012, S1 informed Complainant that her request for a maxi-flex work schedule was denied, but that she would be granted a compressed work schedule, to accommodate her need to take Fridays off for doctors' appointments. While the Rehabilitation Act provides 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). In this case, Complainant was granted a four-day work schedule as an accommodation, and she has not shown that this was an ineffective accommodation. As such, we find that the Agency did not discriminate against Complainant based on disability when it denied her requested 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. 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 disability, and in reprisal for prior EEO activity, we find that the management officials articulated legitimate, non-discriminatory reasons for their actions, as discussed above. Additionally, for claim 3, the ERS stated that he requested further information because the information provided by Complainant's doctor was "very generic and thin on details."
For claim 6, the PMBC stated that he personally spoke with the references that Complainant provided. He stated that one reference could not speak to Complainant's ability to perform the duties of the Management Analyst position because they worked together about fifteen years ago, and Complainant had largely performed administrative duties. The PMBC also stated that another reference had no recollection of working with Complainant; and that S1 informed him that she did not think that Complainant possessed the skill set for the position. The PMBC stated that he made the recommendation that Complainant not be considered for the position based on the information provided by her references, and because her application did not articulate her knowledge of budget formulation.
For claim 10, S3 stated that that Agency's policy requires that employees charge time as work or leave, and that Complainant chose the time code that was appropriate. S3 stated that she offered to find Complainant work that she could accomplish without a computer so that she would not have to take leave, but that she did not respond. Complainant instead requested leave for the time that she was not working.
For claim 12, S3 stated that after a January 8, 2013, staff meeting, she requested that Complainant provide the procurement report. S3 stated that they were having issues with their systems, and that they were not able to get Complainant the data immediately. S2 stated she sent Complainant the data on January 9, 2013. S2 also stated that this report was a routine assignment for Complainant, and that given her familiarity, and the non-complexity of the assignment, she estimated that it would have taken her approximately two hours to complete.
We find that Complainant has not shown that the proffered reasons are pretext for discrimination. In a non-selection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10m Cir. 1981); Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). In this case, Complainant stated that she did not know who was selected for the Management Analyst position, and did not show that she was plainly superior to the selectee. Additionally, Complainant made bare assertions that management officials discriminated against her based on her disability, or in reprisal for her prior EEO activity, which are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Agency did not discriminate against Complainant based on disability, or in reprisal for prior EEO activity when it issued her an LOI; requested "excessive" medical documentation; denied her requests for leave under FMLA; rejected her proposed IDP; did not select her for a Management Analyst position; attached documents to her performance plan and evaluation; reassigned her; denied her request for written processes and procedures; "required" her to take leave while her computer was being repaired; and untimely provided information for a work assignment.
Harassment
As discussed above, we found that Complainant did not establish discrimination on her alleged bases. Consequently, we must conclude that a claim of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency in claims 5 through 12, were motivated by retaliation. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
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 show that the Agency discriminated against, or subjected her to harassment based on disability, or in reprisal for prior EEO activity, when denied her request for a reasonable accommodation; it issued her an LOI; requested "excessive" medical documentation; denied her requests for leave under FMLA; rejected her proposed IDP; did not select her for a Management Analyst position; attached documents to her performance plan and evaluation; reassigned her; denied her request for written processes and procedures; "required" her to take leave while her computer was being repaired; and untimely provided information for a work assignment.
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
_9/2/16_________________
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.
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