Dinah L.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Dec 13, 2018

0120172072 (E.E.O.C. Dec. 13, 2018)

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

Dinah L.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.

Appeal No. 0120172072

Agency No. DCAA-CASE-NE15-002

DECISION

On May 25, 2017, 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
March 31, 2017 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. The Commission’s review
is de novo. 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 an Auditor, GS-12, at
the Agency’s Northeastern Region facility in Dallas, Texas.

On March 27, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of sex (female), disability
(sight and mobility), age (61), and in reprisal for prior protected EEO activity as evidenced by
multiple incidents, including:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. on January 13, 2013, Complainant’s second-line supervisor (S2) temporarily
reassigned Complainant to a supervisor (S1-A);

2. on January 31, 2013, S1-A tasked Complainant with a proposal audit on the day
before Complainant was scheduled for a weeklong personal trip. Subsequently, S1-
A failed to reassign the audit to another auditor despite Complainant’s prolonged
absence from the office;

3. in March 2013, S1-A, S2, Complainant’s third-line supervisor (S-3), and another
management official, denied Complainant her Weingarten rights;

4. in March 2013, S1-A failed to act on Complainant’s telework agreement document
because Complainant was going to be assigned to another supervisor;

5. on March 12, 2013, S2 inserted a letter he authored into Complainant’s personal
appraisal rating document;

6. effective April 5, 2013, S2 and S3 transferred Complainant to another supervisor
(S1-B);

7. on April 9, 2013, S2 and S1-B threatened to write up Complainant after technical
problems prevented Complainant from timely completing tasks that S1-B assigned
to her;

8. on April 12, 2013, S1-B wrote an email in which she stated the Complainant was
“in trouble, but don’t worry, have a good weekend”;

9. on April 15, 2013, Complainant became aware that S2 required her supervisor to
clear all email messages the supervisor sent to Complainant through him before
transmission;

10. on April 24, 2013, S1-B transferred or facilitated from Complainant’s new
computer the transfer of files;

11. on May 7, 2013, S2 and S1-B wrote up Complainant for working hours beyond her
scheduled tour of duty;

12. on May 15, 2013, S1-B denied Complainant’s request for a new laptop and rolling
bag and instead advised her that only laptop backpacks were available;

13. in September 2013, an unidentified agency employee violated the Privacy Act when
he or she conveyed to non-authorized personnel excerpts from Complainant’s
testimony to an Agency Internal Review Directorate Investigator;

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14. on October 10, 2013, S1-A failed to present Complainant with an annual
performance review;

15. on November 20, 2013, S1-B denied Complainant’s request to not attend a “PWT”
meeting;2

16. on December 2, 2013, S2 and S1-B failed to provide Complainant with telework as
an accommodation;

17. on December 4, 2013, Complainant’s supervisor verbally reprimanded her for
being rude telephonically to someone from the IT Department;

18. on December 10, 2013, S1-B denied previously approving Complainant’s request
for medical leave;

19. on January 13, 2014, S1-B falsely advised Complainant about requested sick leave;

20. on January 28 and February 24, 2014, S2 ordered Complainant to redact a portion
of an email message;

21. on October 17, 2014, Complainant felt the Agency violated her rights under the
Genetic Information Nondiscrimination Act; and

22. on December 1, 2014, the Northeastern Region Human Resources management
failed to timely inform both Complainant and the Resident Auditor that
Complainant’s telework agreement was based on reasonable accommodation and
in effect at the time she returned to work.3

Complainant did not provide an affidavit to support her allegations. The record contains an email
from the EEO Investigator to Complainant stating that he attempted to reach Complainant at two
different telephone numbers and that he sought to speak with Complainant about her allegations.
The record does not indicate that Complainant responded and Complainant does not argue on
appeal that she was deprived of the opportunity to provide a statement. Accordingly, we review
this appeal based on the evidence in the record.

2 Throughout the record, PWT is not defined.

3 The Agency dismissed four additional claims for failure to state a claim and for improperly
alleging dissatisfaction with the processing of a prior EEO complaint. Complainant raised no
challenges to the dismissal of these claims on appeal; therefore, the Commission will only consider
these claims as background evidence in support of Complainant's overall hostile work environment
claim.
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Regarding claim (1), Complainant alleged that her reassignment to S1-A was discriminatory
because S1-A had previously created a hostile work environment for Complainant. Subsequently,
S1-A remained Complainant’s supervisor for less than four months. S2 explained that S1-A’s
promotion to supervisor was temporary and resulted when Complainant’s then-supervisor was
detailed to another position. S2 believed that S1-A was the most prepared to be a temporary
supervisor. S2 also stated that he had no prior knowledge of any history between Complainant
and S1-A.4

As to claim (2), Complainant claimed that she was scheduled to be out of the office for a weeklong
personal trip when S1-A assigned her a proposal audit on her last day in the office. Before
Complainant could return to the office, she became sick and had to take an additional two weeks
out of the office on sick leave. Complainant stated that, under such circumstances, management
will reassign audits, but S1-A did not reassign the proposal audit away from Complainant.

In claim (3), Complainant alleged that when S2 scheduled a meeting with her, Complainant was
aware S2 wanted to place her on a performance improvement plain. Accordingly, she anticipated
the meeting would involve an adverse action and sought to invoke her Weingarten right to have a
representative present. S2 denied Complainant’s request. S2 denied ever subjecting Complainant
to any disciplinary action, and stated that he frequently explained to Complainant that she was not
being disciplined. Therefore, S2’s meetings with Complainant did not implicate her Weingarten
rights. The record contains no evidence that Complainant was ever placed on a performance
improvement plan.

Regarding claim (4), Complainant submitted a completed telework agreement to S1-A for
approval. After a few weeks passed, Complainant asked about the agreement and S1-A told her
that Complainant was going to be reassigned to another supervisor. Therefore, S1-A preferred to
let the new supervisor review the telework agreement. S2 stated that it would have been proper
for S1-A to not approve Complainant’s telework agreement because S1-A was only a temporary
supervisor. With regard to claim (5), S2 explained that he added a cover letter to one of
Complainant’s mid-year assessments.

In claim (6), Complainant claimed that the effective date of her transfer was on her scheduled off
day and that Agency management made no effort to advise her of the transfer before she returned
to work on her next scheduled work day. S2 affirmed that it was within his authority to transfer
employees as necessary. S2 acknowledged that Complainant did not get advance notice of her
transfer, but noted that Complainant was not happy working under S1-A and had requested a
transfer.

In claim (7), Complainant said she had technical difficulties when she arrived at work that day and
documented her difficulties with S2 and S1-B. Therefore, she needed three additional hours of
time to complete her assignments.

4 The Agency was unable to obtain an affidavit from S1-A because she was no longer employed
in federal service.
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Had she not stayed late, Complainant contended that S1-B and S2 would have written her up for
insubordination. S1-B denied writing Complainant up for any technical problems.

Following this claim, Complainant alleged in claim (11), that S2 and S1-B wrote her up for staying
three hours beyond the end of her scheduled tour of duty. S1-B explained that S2 had told
Complainant several times in the past not to work credit hours that were not previously approved.
Because she did it again under S1-B’s supervision, S1-B gave her an oral admonishment that was
to be removed from Complainant’s record in one year. S2 added that Complainant working off
the clock was not an isolated incident.

As to claim (8), S1-B explained that the email was a typographical error, and she meant to say
“you are not in trouble.” She stated that she apologized profusely to Complainant in person and
in writing.

In claim (9), both S1-B and S2 denied any knowledge of the allegation that S1-B was required to
clear all emails to Complainant through S2 before transmission.

With regard to claim (10), Complainant contended that when she received a new Agency laptop,
S1-B transferred, or facilitated the transfer of, files from her old laptop to the new one. S1-B
denied doing this, and averred that she had no access to the files on Complainant’s computer. As
to claim (12), S1-B stated that she has no authority over equipment and could not approve
computer bags or laptops, and therefore, could not deny Complainant a rolling laptop bag.

For claim (13), Complainant did not identify who she believed conveyed unauthorized
information, with whom the information was discussed, nor the type of information that was
communicated. Management averred that they had no knowledge of this incident.

S1-B also denied refusing Complainant a performance review, as alleged in claim (14).

With respect to claims (15) and (16), Complainant contended that the Agency denied her
reasonable accommodation request to telework 100% of the time. In addition, Complainant
alleged that she requested permission to not attend PWT meetings, as they can last approximately
two hours. Complainant stated that due to complications from her condition, as identified by her
physician, she is largely immobile and uses a walker. Complainant’s request was reviewed by
Human Resources. S2 stated that Complainant needed to submit sufficient documentation in
support of her request. The record contains a document dated May 29, 2013, in which the Agency
responded to Complainant’s nine requests for reasonable accommodations. After reviewing
Complainant’s supporting medical documentation, the Agency granted, without reservation, all of
Complainant’s requests except her request for 100% telework.

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As to this request, the Agency stated: Telework will be approved to the largest extent possible with
the stipulation that [Complainant] will need to visit [her] home office for meetings in Dallas, TX,
[her] contractor site . . . , other contractor locations assigned, as well as TDY sites as needed, at
the request of [her] supervisor or manager, or as [she] deem[s] necessary to perform [her] job.

In claim (17), Complainant contended that S1-B verbally reprimanded her because someone in
Information Technology (IT) complained to S1-B that Complainant was being rude. Complainant
stated she emailed all IT personnel and none of them confirmed having a conversation with S1-B
about her. S1-B denied reprimanding Complainant. Rather, the IT supervisor told S1-B that
Complainant was very rude to one of the IT personnel. Therefore, S1-B told Complainant to be
mindful of how she spoke to other people.

With regard to claim (18), Complainant stated that S1-B approved leave in November 2013 for the
period December 10 to 12, 2013. On December 10, 2013, Complainant claimed that S1-B called
her telephone and told her husband that she had never approved Complainant’s leave request.
Similarly, in claim (19), Complainant alleged that S1-B told Complainant that S2 denied her
emergency request for sick leave on January 13, 2014.

S1-B denied that she disapproved Complainant’s request for leave in December 2013. As to claim
(19), S1-B stated that Complainant had requested the wrong type of leave. Complainant had
requested over 40 hours of advance sick leave, and therefore S1-B asked Complainant to provide
medical documentation to support her request

S2 explained, regarding claim (20), that he instructed Complainant to redact a portion of an email
on February 28, 2013, not January 28, 2013 as alleged, because the redacted portion included an
unprofessional comment regarding Complainant’s supervisor, S1.

With regard to claim (21), Complainant claimed that management required her to quickly secure
and submit medical documentation in relation to her request for medical leave. Complainant
alleges that this requirement violated the Genetic Information Nondiscrimination act, but provides
no explanation or argument in support of her allegation.

The record contains no evidence supporting Complainant’s allegation in claim (22), that the
Northeastern Region Human Resources management failed to timely inform both Complainant
and the Resident Auditor that Complainant’s telework agreement was based on reasonable
accommodation and in effect at the time she returned 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 (AJ). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination, reprisal, or a hostile work environment as alleged.
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Specifically, the Agency concluded that Complainant was unable to rebut management’s
articulated legitimate, nondiscriminatory reasons and the record did not reveal any evidence that
any of management’s actions were motivated by discriminatory or retaliatory reasons.

The instant appeal followed. Complainant did not submit a brief in support of her appeal. The
Agency requests that the Commission affirm its final decision.

ANALYSIS AND FINDINGS

As an initial matter, we note that Complainant alleged discrimination based on genetic information
in violation of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42
U.S.C. § 2000ff et seq., which prohibits employers from discriminating against any employee
because of genetic information with respect to the employee. 29 C.F.R. § 1635.1. Genetic
information means information about (i) an individual's genetic tests; (ii) the genetic tests of that
individual's family members; and (iii) the manifestation of a disease or disorder in family members
of such individual (family medical history). 29 C.F.R. § 1635.3(c). Complainant's complaint is
devoid of any allegations or facts regarding genetic tests, the genetic tests of her family members,
or her family medical history. Given Complainant’s lack of response to the EEO Investigator’s
multiple requests for further information during the investigation, and that Complainant did not
raise any contentions regarding it on appeal, we consider Complainant to have waived her
allegation of discrimination on the basis of genetic information. Alternatively, we dismiss
Complainant's allegation of discrimination on the basis of genetic information for lack of
specificity. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122328 (Jun. 20, 2013).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, we
proceed directly to the pretext analysis. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983). Complainant may demonstrate pretext by showing by a preponderance of the
evidence that the Agency’s reasons were motivated by discrimination. Id.; Hernandez v. Dep’t of
Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human
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Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

As described above, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Complainant has failed to show that many of her claims actually occurred. Even assuming that
the incidents occurred, however, a fair review of the record reveals that Agency management
explained that they were taking appropriate actions to supervise Complainant. Complainant
offered no evidence to contradict the Agency’s reasons for its actions as discussed above. As a
result, Complainant is unable to demonstrate that any of the actions at issue were based on her
protected classes. Thus, we find that Complainant was not subjected to discrimination or reprisal
as alleged.

Hostile Work Environment

To establish a claim of harassment, Complainant must show that: (1) she is a member of 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 protected class;
(4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement
Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or
should have known of the alleged harassment, unless it can show that it took immediate and
appropriate corrective action. 29 C.F.R. § 1604.11(d).

In short, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

In this case, the Commission concludes that Complainant has not shown that she was subjected to
a discriminatory or retaliatory hostile work environment. The cited incidents lack sufficient
severity or pervasiveness to constitute a hostile work environment and the record reflects that the
alleged incidents were more likely the result of routine supervision, personality conflicts, and
general workplace disputes and tribulations. Even assuming that the alleged conduct was
sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show
that the Agency's actions were based on discriminatory or retaliatory animus. As a result, the
Commission finds that Complainant was not subjected to a hostile work environment as alleged.

Denial of Reasonable Accommodation

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In claims (15) and (16), Complainant alleged the Agency denied her reasonable accommodation.
The Commission notes that 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.
To establish a denial of 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. The Commission will assume without deciding (for the purposes of
this decision) that Complainant is an individual with a disability.

In this case, the record reveals that Complainant submitted a request for reasonable
accommodation on May 1, 2013, requesting several modifications. Among the modification,
Complainant requested to expand her current rate of telework from 50 percent to 100 percent.
Complainant submitted medical documentation supporting her request. The Agency approved
Complainant’s requested modifications as request, except for her request for 100 percent telework.
In the alternative, the Agency stated that Complainant would be allowed to telework to the largest
extent possible with occasional contractor site visits and visits into the office for meetings. There
is no evidence indicating that Complainant requested to be excused from PWT meetings in her
accommodation request. Nonetheless, management officials denied making Complainant come
into the office for a PWT meeting and Complainant’s approved accommodation only required her
to attend contractor, team meetings, and supervisory meetings. Agency management additionally
approved regular rest breaks for Complainant when driving or walking to meetings.

While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the
accommodation of her choice. Lynette B. v. Dep’t of Justice, EEOC Appeal No. 0720140010
(Dec. 3, 2015). Complainant presented no argument or evidence that the Agency’s offered and
granted accommodations were not effective. Accordingly, the Commissions finds that
Complainant has not established that she was unlawfully denied a reasonable accommodation
under the Rehabilitation Act.

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.

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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.
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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

December 13, 2018
Date