Dinah L.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.Download PDFEqual Employment Opportunity CommissionDec 13, 20180120172072 (E.E.O.C. Dec. 13, 2018) Copy Citation 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. 0120172072 2 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; 0120172072 3 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. 0120172072 4 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. 0120172072 5 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. 0120172072 6 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. 0120172072 7 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 0120172072 8 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 0120172072 9 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. 0120172072 10 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. 0120172072 11 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 Copy with citationCopy as parenthetical citation