Doloris W.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 5, 2018

0120160279 (E.E.O.C. Mar. 5, 2018)

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

Doloris W.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120160279

Hearing No. 570-2014-00253X

Agency No. CRSD-CF-2012-00013

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 29,
2015 final order 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist,
GS-0360-14, in the Agency’s Office of the Assistant Secretary for Civil Rights (OASCR),
Compliance Division in Washington, D.C. Complainant experiences complications from
Chronic Obstructive Pulmonary Disease (COPD). Complainant’s condition is aggravated by
environmental factors including air quality codes of orange or red, high humidity accompanied
by temperatures over 90 degrees, high heat indexes, and temperatures below freezing.
Complainant was approved to telework as a reasonable accommodation when her condition
would be affected by the weather.

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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On June 22, 2011, Complainant’s supervisor (S1) was out of the office and requested that
Complainant, as Team Leader, check on the availability of a co-worker (CW-1) because she had
been informed that CW-1 left work early the previous day. Complainant claimed that S1 wanted
a statement from her indicating that CW-1 had left early even though Complainant did not
believe that CW-1 left early. Complainant sent CW-1 an email as requested by S1 regarding her
availability on June 21, 2011.

Complainant claimed that S1 routinely questioned her need to telework during certain weather
conditions. Complainant alleged that S1 told her that she believed Complainant was attempting
to “get over.” Complainant claimed that S1 would tell her that she had an assignment that
required her presence in the office.

Complainant alleged that S1’s Executive Assistant (EA) constantly monitored her time and
attendance. Complainant claimed that EA would come to her office and request that she change
or correct items on her time and attendance. Complainant stated that EA should not have been
involved with her time and attendance as EA was a contract employee. On May 18, 2012,
Complainant wrote S1 and claimed that she was being harassed by EA. EA approached
Complainant’s office to ask her a question and claimed that Complainant pushed her, slammed
the door, and yelled that she was tired of EA monitoring her. EA filed a report of assault with
the Federal Protective Service. On June 5, 2012, S1 informed Complainant that EA had told her
that Complainant pushed EA the previous week. Complainant was interviewed by the Federal
Protective Service later that day. Complainant denied pushing EA. On June 8, 2012,
Complainant’s second-level supervisor (S2) met with Complainant about the matter. During the
meeting, S2 informed Complainant that he considered the matter closed and took no further
action against either employee. Complainant stated that EA no longer gave her assignments or
monitored her work.

On July 16, 2012, S2 instructed Complainant to research a “White Paper” on Fair Housing
testing and to submit a preliminary draft the next day. On July 17, 2012, Complainant sent a
draft to S2; however, S2 requested that Complainant re-submit the draft in a different format. In
response, Complainant questioned whether S2’s suggested format should be used, whether it was
proper for the Compliance Division to address the issue, and suggested that someone else
complete the assignment. As a result, S2 informed S1 of Complainant’s response and requested
that another employee complete the assignment. Complainant claimed that S1 later came into
her office and “went ballistic” over her failure to complete the assignment.

Complainant alleged that S1 excluded her from meetings and projects. For example,
Complainant claimed that S1 stated that she was not approved to work on the “Program
Compliance function in PCMS.”2 Additionally, Complainant alleged that S1 frequently withheld
information and documents related to her assignments.

2 The record does not identify this abbreviation.
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On an unspecified date, Complainant was to attend an organizational meeting. Prior to the
meeting, Complainant went outside the conference room to get some aspirin. Complainant
claimed that S1 came out into the hallway and demanded that Complainant “get back in this
room!” Complainant returned to the conference room after retrieving the aspirin. Following the
meeting, S1 sent Complainant an email informing her that it had been reported to her that
Complainant had fallen asleep during the meeting and that her conduct was unprofessional.
Complainant responded by denying that she had fallen asleep during the meeting.

In March 2012, Complainant claimed that she attended a mediated conversation with S1 and two
mediators about their work-related issues. Complainant alleged that S1 later announced at a staff
meeting that all mid-year reviews had been completed. Complainant stated that she later
approached S1 and informed her that she had not been given a mid-year evaluation.
Complainant claimed that S1 told her that she had not met with her because Complainant had
been busy. Additionally, Complainant alleged that S1 told her that she considered the mediated
conversation as her mid-year review. Complainant stated that she informed S2 of S1’s position
regarding her mid-year review, and S1 later performed a mid-year review with her.

On September 10, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American), sex (female), disability, and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, S1 requested that Complainant send emails
stating that she had witnessed activity that she had not witnessed; S1 questioned Complainant's
need for the reasonable accommodation of telework and informed Complainant that she could no
longer telework; S1 assigned the Executive Assistant to monitor Complainant’s time and
attendance, work products and work schedule and encouraged her to file a false report against
Complainant with the Federal Protective Service; S1 falsely accused Complainant of not
completing work assignments, including a White Paper; S1 falsely stated that Complainant was
not approved to work on certain projects, excluded her from meetings, and withheld necessary
information required to complete assignments; S1 falsely accused Complainant of sleeping in a
meeting; and S1 attempted to not conduct a mid-year review meeting with Complainant by
claiming that a mediated conversation between management officials was Complainant's mid-
year review.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case granted summary judgment in favor of the Agency, and issued a decision on September 16,
2015.

In the decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the conduct at issue was based on discriminatory or retaliatory animus. For
example, S1 affirmed that she requested that Complainant send CW-1 an email regarding her
presence in the office in June 2011 because Complainant was CW-1’s team leader. At the time
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of this incident, S1 was out of the office and had been unsuccessful in contacting CW-1.
Additionally, S1 contacted the employee who sat next to CW-1, but that employee informed her
that there was no answer at CW-1’s door and her trash can was outside of her door indicating
that she may have left for the day. S1 denied that she requested Complainant provide a statement
regarding what time CW-1 left or concerning any other activity by other employees.

With respect to telework, S1 stated she has never denied Complainant’s requests for telework for
her medical condition and has never told Complainant she could no longer telework. S1
affirmed that she had a general discussion with Complainant on or about July 31, 2012, in
response to Complainant’s statement that she would be teleworking for the rest of the week
because Complainant did not discuss the weather conditions when stating her intention to
telework the rest of the week.

As to her claim regarding EA’s monitoring, S1 asserted that she did not assign EA to monitor
Complainant’s time and attendance; rather, EA maintained a calendar for the entire Compliance
Division staff. Further, S1 affirmed that EA, along with the Equal Opportunity Assistant,
coordinated, tracked, and reviewed the entire Compliance Division’s work products and
reviewed all correspondence before it was submitted to her for review and approval. S1 added
that EA preformed her duties in the same manner with all Compliance Division staff. EA denied
that S1 asked her to monitor Complainant’s time and attendance, schedule, or work products.

Regarding EA’s report against Complainant, S1 denied that she encouraged EA to file a false
report of assault against Complainant and stated that she became aware of the report when
Federal Protective Service approached her in her office. EA stated that she filed the report
because Complainant assaulted her and she felt her life was in jeopardy. EA added that S1
played no role in her decision to file the report.

As to Complainant’s claim that she was falsely accused of not completing work assignments, S2
confirmed that Complainant was assigned to draft a White Paper and he requested that she re-
submit the draft in a different format. S2 stated that in response, Complainant questioned
whether she should use the format he provided her; questioned the need for the issue to be
assigned to the Compliance Division; and stated that someone more familiar with the topical
matter should be assigned to complete the task. S2 affirmed that he then asked another employee
to complete the assignment and informed S1 of Complainant’s actions. S1 stated that after she
learned that Complainant did not complete the assignment, she had a discussion with
Complainant as she did with all other employees about their assignments.

With respect to Complainant’s claim that she was denied approval to work on certain projects,
S1 explained that she did not falsely state that Complainant was not approved to work on the
PCMS project; rather, Complainant was approved to work on the project with the team and was
not given the authority to approve any work product on behalf of the Chief of the Compliance
Division. S1 stated that she informed the individual responsible for the PCMS system that
Complainant was not given the authority to approve any work products on behalf of the Chief of
the Compliance Division. As to Complainant’s claim that she was excluded from meetings and
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that S1 withheld important information for assignments, S1 affirmed that, to her knowledge,
Complainant was invited to all meetings regarding her assignments. S1 noted that Complainant
requested on several occasions not to be included in certain assignments and that Complainant
was included in all non-confidential meetings. S1 denied withholding any necessary information
or documentation from Complainant that was required for her to complete her assignments.

Regarding Complainant’s claim that she was falsely accused of falling asleep during a meeting,
S1 asserted that she was informed that Complainant was sleeping during an interagency meeting.
S1 stated that she confronted Complainant about the incident because that conduct was
unacceptable and it was her responsibility to address it. S1 affirmed that Complainant told her
that she closed her eyes because she had a headache.

Finally, with respect to her mid-year review claim, S1 stated that she sent Complainant several
emails requesting to discuss her mid-year performance review and that she ultimately had to go
to Complainant’s office to request a time for them to discuss it. S1 asserted that Complainant
was scheduled for a mid-year review like the rest of the Compliance Division staff and when
Complainant was sent the request for the mid-year review, she forwarded the request to S2 for
him to participate.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination,
reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order
fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ’s decision is not supported by the evidence and is
inconsistent with the law. Further, Complainant argues that the AJ erred in issuing a summary
judgment decision as factual issues remain in dispute. Accordingly, Complainant requests that
the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. The Commission finds that the AJ properly issued summary judgment as
the material facts are undisputed.

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Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to 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 her
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).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile
work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive
to create a hostile work environment, the Commission finds that Complainant failed to show that
the Agency’s actions were based on discriminatory or retaliatory animus. For example, S1
denied requesting Complainant to provide a statement saying that CW-1 had left early. ROI, at
164-65. S1 affirmed that Complainant was CW-1’s Team Leader and S1 was attempting to
contact CW-1 regarding an assignment. Id. at 164. Complainant emailed CW-1 informing her
that S1 was attempting to contact her and could not locate her. Id. With respect to telework, S1
confirmed that Complainant was approved for one day of telework per week in accordance with
the Agency’s telework policy and that Complainant was allowed to telework depending on the
weather. Id. at 150. S1 stated that on one occasion in July 2012, Complainant informed her that
she would be teleworking the rest of the week without mentioning the weather or her need to do
so due to her condition. Id. S1 met with Complainant and informed her that she was needed in
the office because of light coverage that week. Id. Following the meeting, Complainant
provided S1 with the weather forecast for the week and S1 immediately approved her request to
telework the rest of the week. Id. S1 stressed that Complainant was never denied a request to
telework and that she has been accommodated whenever she made a request to telework for her
condition or appointments. Id.

Regarding Complainant’s claim that EA monitored her, S1 denied assigning EA to monitor
Complainant. ROI, at 152. S1 explained that EA maintained a calendar for her and the staff and
EA, along with the Equal Opportunity Assistant, coordinated, tracked, and reviewed all of the
Compliance Division staff’s work products. Id. EA denied monitoring Complainant or being
asked by S1 to monitor Complainant. Id. at 229. In addition, S1 denied having any role in EA’s
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assault report with the Federal Protective Service. Id. at 153. EA confirmed that S1 had nothing
to do with her report and that she filed it because she felt threatened by Complainant following
the incident. Id. at 230. S1 stated that management met with both parties and EA was removed
from having personal contact with Complainant. Id. at 153.

With respect to her claim regarding not completing assignments such as the White Paper project,
S2 confirmed that he asked Complainant to complete a portion of the project and that he
provided her with some guidance to start. ROI, at 181. S2 stated that Complainant questioned
the format that he sent her, whether the Compliance Division should be addressing the issue, and
suggested that someone else more familiar with the process should complete the task. Id. at 181,
208. S2 stated that there was not enough time to debate the merits of the assignment with
Complainant; therefore, he asked another employee to complete the assignment and notified S1
of Complainant’s actions. Id. at 181. S1 stated that she was out of the office when this issue
occurred, and she discussed the matter with Complainant when she returned in the same manner
as she did with all other staff members regarding their work assignments. Id. at 154.

As to the PCMS project, S1 denied saying that Complainant was not approved to work on the
PCMS project; rather, S1 stated that Complainant was approved to work on the project as a team.
ROI, at 155. S1 affirmed that Complainant was authorized to work on the project, but she was
not given authority to approve any work products on behalf of the Chief. Id. S1 asserted that
she informed the individual responsible for the PCMS system that Complainant was not
authorized to approve any work products on behalf of the Chief. Id. Regarding her claim that
she was excluded from meetings, S1 stressed that Complainant was included in all meetings
regarding her assignments. Id. at 169. S1 stated that Complainant was not invited to the
confidential Agency Head Assessment meetings as only the Core Team members were included
in those meetings. Id. S1 added that Complainant was included in all other Agency Head
Assessment meetings. Id. Further, with respect to her claim that S1 withheld information and
documents for her assignments, S1 explained that Complainant was given what was needed to
complete her assignment, but some of the documents were confidential and password-protected.
Id. at 170.

As to Complainant’s claim that S1 was rude to her prior to a meeting and falsely accused her of
sleeping during the meeting, S1 explained that prior to the meeting Complainant walked past the
conference room to another office. ROI, at 170. S1 stated that she asked Complainant to come
back to the room so that the meeting could begin. Id. S1 affirmed that she repeated herself when
Complainant did not respond. Id. S1 confirmed that it was reported to her that Complainant
appeared to be sleeping during the meeting, and she emailed her to inform her of her
responsibility to be attentive during a meeting. Id.

Finally, with regard to her mid-year review, S1 stated that she sent several email requests to
Complainant to come to her office regarding her mid-year review. ROI, at 160. S1 affirmed that
she eventually had to go to Complainant’s office and request a time to meet and discuss her
review. Id. S1 stressed that Complainant was scheduled for a mid-year review like the rest of
the Compliance Division staff. Id.
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The Commission agrees with the AJ that Complainant has not shown that she was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that she was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal.
As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision
finding that Complainant was not subjected to discrimination, reprisal, or a hostile work
environment as alleged.

Denial of Reasonable Accommodation

Finally, to the extent that Complainant is alleging that she was denied 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.

As discussed above, Complainant was granted one day of telework pursuant to the Agency’s
telework policy. ROI, at 328. Additionally, Complainant was granted the option to telework to
avoid weather-related elements that may negatively affect her condition of COPD. Id. at 150.
S1 affirmed that Complainant was accommodated whenever she made a request to telework. Id.
Complainant identified a July 2012 conversation with S1 as an instance where S1 denied her
request to telework. S1 explained that Complainant requested to telework the rest of the week on
or around July 31, 2012, but made no reference to the weather conditions. Id. at 150. S1 stated
that Complainant provided her with weather information for the remainder of the week, and she
immediately approved the request. Id. Complainant has presented no evidence in support of her
claim that she was denied telework as an accommodation. In addition, Complainant has
presented no evidence that the Agency was unwilling to reasonably accommodate her or
otherwise denied her reasonable accommodation. Accordingly, the Commission finds that the
Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation
Act.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency's final order, because the EEOC Administrative Judge’s issuance of summary judgment
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was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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
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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

March 5, 2018
Date