0120160843
06-27-2018
Cher C.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cher C.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120160843
Agency No. HHS-OS-0150-2014
DECISION
On December 22, 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 November 24, 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.
ISSUES PRESENTED
The issues presented are whether Complainant established that the Agency subjected her to harassment, failed to grant her a reasonable accommodation, and subjected her constructive discharge and reprisal, as a result of the allegations contained herein.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-9 at the Agency's Workforce Relations Division, OS, HHS facility in Washington, DC. On April 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (physical), and reprisal for engaging in prior protected EEO activity when:
1. On October 24, 2013, Complainant submitted a request for a reasonable accommodation and was told by the Reasonable Accommodation Specialist (RA) in the EEO Office that her request would be sent to Federal Occupational Health (FOH) for a determination. When the RA contacted Complainant's supervisor (S1) regarding her request, S1 advised the RA not to process the request. However, the RA did send the request to FOH. Complainant was then told by S1 that her request for episodic telework would be denied since it was already available to other staff;
2. On December 23, 2013, Complainant withdrew her reasonable accommodation request because she felt bullied to do so as a result of a verbal interaction between S1 and the EEO Director;
3. On January 27, 2014, Complainant received a verbal warning for not being telework-ready during a snow day, although the telework policy stated that if your children are home, employees are not considered telework-ready;
4. On January 29, 2014, Complainant resubmitted her request for a reasonable accommodation and did not receive a response, even though her doctor informed her that he provided recommendations to FOH at the beginning of the month;
5. On February 13, 2014, Complainant signed a copy of her annual performance rating and requested a copy. However, S1 refused to provide her a copy of the document.
6. On February 21, 2014, Complainant received a reprimand for the verbal warning that she received on January 27, 2014, after submitting her EEO complaint. Complainant was also told by S1 that her position would be demoted to support staff for all other specialists;
7. On February 24, 2014, Complainant resigned from her position due to the harassment and retaliation she was receiving from S1;
8. On February 28, 2014, Complainant withdrew her resignation and received an email from upper management requesting the reason for the withdrawal before acceptance. Since then, Complainant has not received a response on the request for withdrawal of her resignation;
9. On March 14, 2014, S1 notified Complainant that she would be moving close to S1's office;
10. On March 18, 2014, Complainant was called into her supervisor's office and in the presence of a co-worker, received a notice of proposed suspension for seven days for not including S1 on the email chain when she submitted her resignation, and for her attitude the day she received the reprimand.
The investigative record shows that Complainant contacted the RA in October of 2013 regarding a reasonable accommodation request permitting her to telework on an occasional basis. Complainant provided the RA with medical information from her doctor indicating that she had multiple sclerosis. S1, however, did not believe that Complainant's reasonable accommodation request was necessary because episodic telework was already available to staff. Notwithstanding S1's beliefs, the RA forwarded Complainant's request to FOH for a reasonable accommodation determination, as it was not S1's responsibility to make the accommodation determination.
In December 2013, when Complainant had not received a response to her accommodation request, she withdrew the request. Thereafter, on January 29, 2014, Complainant resubmitted her request. The resubmitted request was approved as an as-needed option in early February 2014. However, the RA was not able to reach Complainant to inform her of the approval because Complainant was out of the office, in anticipation of resigning her position.
The record further shows that on January 27, 2014, S1 issued Complainant a verbal warning concerning her availability to telework because the office was closing because of snow, and thereafter issued Complainant a reprimand for failing to telework or request leave on the January date in question. Complainant advanced that she could not telework that date because her children stayed home, and OPM and HHS policy dictated that she could not care for her children and be telework ready.
On February 24, 2014, Complainant and S1 engaged in a verbal altercation because S1 made a reassignment of Complainant's duties. While her position description never changed, Complainant believed that she was being demoted to an administrative, secretary position and, consequently, submitted her resignation. In this regard, S1 testified that she moved Complainant's office closer to her and gave her different duties to monitor her performance, but made no significant change in Complainant's responsibilities. Complainant's position description, in fact, indicated that her position was "developmental." Four days later, on February 28, 2014, Complainant submitted a withdrawal of her resignation. The second level supervisor, S2, requested that Complainant provide an explanation concerning the withdrawal of her request, which Complainant provided, but testified that she never received a response from S2. Nevertheless, S2 testified that he permitted Complainant to withdraw her resignation and return to work.
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. 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.
CONTENTIONS ON APPEAL
Neither Complainant, nor the Agency, submitted contentions on appeal.
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").
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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, 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.
After receiving a request for reasonable accommodation, the Agency and the employee should engage in an informal, interactive process to clarify what the employee needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, at Question 5 (as revised Oct. 17, 2002) (Guidance). When the disability and/or the need for accommodation is not obvious, the Agency may ask the employee for reasonable documentation about his disability and functional limitations. See id. at Question 6. Reasonable documentation means that the Agency may require only the documentation that is needed to establish that the employee has a disability under the Rehabilitation Act, and that the disability necessitates a reasonable accommodation. Id.
Harassment
To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).
Constructive Discharge
The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Love v. U.S. Postal Serv., EEOC Request No. 0520110689, citing Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990) and Perricone v. U.S. Postal Serv., EEOC Request No. 05900135 (June 11, 1990).
Upon review of the record, we find that Complainant failed to show that she was denied a reasonable accommodation, subjected to a hostile work environment, constructively discharged, or subjected to reprisal or discriminatory animus with regard to any of the allegations set forth above. With respect to her reasonable accommodation claim, while her supervisor may have been resistant to Complainant's claim that an accommodation was required, the record shows that the Agency processed her request and tried to inform her of the results of her request. Additionally, the RA testified that during the interactive engagement with Complainant concerning her accommodation needs, Complainant revealed that she did not in fact need the reasonable accommodation at the time she submitted the request, but was submitting the request in case a future medication change affected her ability to work. Notwithstanding Complainant's prospective request, the Agency maintained the active status of the request; therefore, Complainant was never denied a reasonable accommodation.
Nor are Complainant's hostile environment claims supported by the record. She made no showing of any action on the part of the Agency that was sufficiently severe or pervasive to create an intimidating or offensive work environment. We find that the incidents raised by Complainant, even if they occurred as alleged, were more in the nature of common work-place exchanges and differences of opinion over supervisory directives.
We further find that Complainant was not constructively discharged. Assuming for the purposes of argument that Complainant established a prima facie case of discrimination on all the alleged bases, she made no showing that any of the agency's legitimate, nondiscriminatory reasons for its actions were pretextual. Moreover, Complainant failed to present evidence of discriminatory animus on any of the alleged bases. Nor did complainant present any evidence of retaliatory actions on the part of the Agency, based on any prior participation in the EEO process. While Complainant and S1 may have had a contentious professional relationship, there is no evidence that Complainant's working conditions were sufficiently intolerable that a reasonable person in her position would have been forced to resign.
CONCLUSION
Based on a thorough review of the record, we find that Complainant did not establish that she was denied a reasonable accommodation, nor subjected to hostile work environment, constructive discharge, disparate treatment or reprisal. Accordingly, the Agency's final decision is AFFIRMED.
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. 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. 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
____6/27/18______________
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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