0120092749
06-29-2012
Elizabeth A. Watkins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Elizabeth A. Watkins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120092749
Hearing No. 460-2008-0179X
Agency No. 6H-000-0001-08
DECISION
Complainant timely filed an appeal from the Agency's May 8, 2008, 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. The Commission and accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency properly dismissed Complainant's allegation that the Agency subjected her to harassment on the bases of sex, disability, and reprisal and (2) whether the Agency properly found that Complainant had not been discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postal Inspector (Program Manager), ISLE-14, in the Investigative Requirements & Solutions (IRS) Group/Group 6 Intelligence. Complainant's assignment to the IRS Group became effective March 31, 2007, and she began working with the group in May 2007. The IRS Group was located at Headquarters in Arlington, Virginia, but Complainant's duty station was in the Houston Inspection Service Division. Complainant states that she has been a Headquarters employee since 2003. Report of Investigation (ROI) Exhibits (Exs.) 1, 11; id. Affidavit (Aff.) A at 57.
In a June 29, 2007, e-mail to the IRS Group Supervisor (S1), Complainant requested approval to engage in outside employment as a real estate agent. The e-mail stated that Complainant would not use agency resources when conducting activities as a real estate agent and that the activities do not interfere with her ability to perform official duties. S1 states that she asked Complainant to submit a written request for approval after Complainant told her during a telephone conversation that she was involved in real estate for investment purposes. S1 also states that she told Complainant that the e-mail contained insufficient information and they could discuss the matter when Complainant came to the Group's office in Virginia. Complainant attended training in Vienna, Virginia, from July 11 through 13, 2007, but did not go to the Arlington office. Complainant was scheduled to go to the Arlington office on July 23 but took annual leave from July 24 through 27 because her home had been burglarized. ROI Ex. 5; id. Aff. B at 12-13; Agency Prehearing Report Ex. 5c.
S1 states that, during a July 17, 2007, meeting, she asked the Inspector in Charge (INC) of the Houston Division about Complainant's real estate activities and he thought that Complainant's activities went beyond personal investments. On August 9, he sent S1 an e-mail with a link to a website containing information about Complainant's real estate transactions. An August 10, 2007, printout from the site states that Complainant was offering 35 properties. ROI Aff. B at 12-13, 15, 48-50.
Complainant took sick leave from July 30 through September 28, 2007. On August 8, 2007, Complainant's psychologist completed a Family and Medical Leave Act form recommending that Complainant be absent from work for six weeks for a psychiatric impairment due largely to work stress and problems. During an August 13 conversation about Complainant's sick leave, S1 told Complainant that she would not approve the outside-employment request because they had not fully discussed the request and because Complainant was going to be on extended sick leave. S1 sent Complainant a letter reiterating this on August 16. Agency Prehearing Report Ex. 5a-5s; ROI Exs. 6,7; id. Aff. B at 15-16.
Agency policy states that employees may not engage in gainful employment while on sick leave without prior approval. Agency policy also states that employees wishing to engage in outside employment must submit written requests to their INC, the INC will approve or disapprove the request in writing, and approval depends on such factors as whether the employment would prevent the employee from reporting to duty immediately, constitute a conflict of interest, diminish the employee's objectivity, or embarrass the Agency. Agency Motion for Summary Judgment and to Dismiss Ex 10; ROI Ex. 27.
The record reveals that, on August 31, 2006, a male Postal Inspector (Comparator 1) who was not on restricted duty and had not engaged in EEO activity requested permission to engage in outside employment as a real estate agent with a realty company. His written request stated that he had passed a state real estate examination, needed to complete a course from the company before he could sell real estate for the company, and would sell real estate for a commission. S1 approved the request on February 20, 2007. The approval letter stated that Comparator 1 made the request to continue his training to become a real estate agent and that the primary reason for the employment was for Comparator 1 to be able to sell his own residence. The letter also stated that, in accordance with their discussion, Comparator 1 could not conduct business while on official duty or discuss his outside employment with other employees. S1 states that she approved Comparator 1's request because he provided detailed information about his planned activities and the employment would not conflict with his duties. According to S1, Comparator 1 told her he wanted to sell his residence upon retirement and did not intend to sell real estate while still working. ROI Exs. 24, 25; id. Aff. B at 14.
By letter dated September 6, 2007, Complainant's psychologist released Complainant to return to duty effective September 17. The letter stated that Complainant was still experiencing some stress-related symptoms but had made improvements. Noting that travel was associated with Complainant's stress and sleep disruption and that "travel at this point could result in a relapse," the psychologist recommended that Complainant "avoid long distance travel for one month." She recommended that the travel restriction be re-evaluated in one month. ROI Ex. 8.
In a September 18, 2007, letter to the Agency's Human Resources Analyst (HR Analyst), the Agency's Associate Medical Officer (AMO) recommended the following additional restrictions: work sedentary duties/desk job; avoid working longer than eight hours per day, five days per week; no safety-sensitive duties, including recertification for firearm use; avoid working in stressful conditions; and no operation of motor vehicles or hazardous equipment if using medication that may impair observation, judgment, or reaction time. The AMO stated that the additional restrictions were designed to provide Complainant with less stressful duties. On September 25, after speaking with Complainant's psychologist, the AMO removed the driving restriction. The AMO stated that Complainant's psychologist recommended the following restrictions: no long-distance travel; sedentary duties; avoid working longer than eight hours per day, five days per week; avoid hazardous or safety-sensitive duties, including the recertification or use of defensive tactics or a firearm; and avoid stressful working conditions. It is not clear from the record whether, or to what extent, these additional restrictions were conveyed to Complainant. Agency Prehearing Report Ex. 2a-d.
Complainant returned to work on October 3, 2007. On October 25 or 26, S1 traveled to Houston to meet with Complainant. During the meeting, S1 told Complainant that she would not approve the request for outside employment while Complaint was working under restrictions and could not fully perform the duties of her position. S1 states that she did not approve the request because Complainant had not been forthcoming about the extent of her real estate activity and because Complainant was working under restrictions and could not fully perform the duties of her position. Complainant states that her medical restrictions did not affect her ability to pursue outside employment after work and on weekends. She also states that S1 told her that she denied the request because Complainant was on medical restrictions, she did not understand what Complainant did, and she was concerned that Complainant might solicit other employees and be constantly taking telephone calls. ROI Affs. at A 65-66, B at 3, 13-15.
During the October 2007 discussion, S1 suggested that Complainant withdraw from her participation in the Agency's Career Leadership Program (CLP). S1 told the EEO Counselor that she made the suggestion because CP had shown poor judgment, was not cognizant of Agency rules and regulations, and at that time was not suitable for an Assistant Inspector in Charge position. She told the investigator that she made the suggestion because Complainant had previously mentioned family problems and expressed concerns about promotion and participation in CLP and S1 thought that a voluntary withdrawal from CLP was a viable suggestion. Complainant did not resign from CLP. EEO Counselor's Report at 23-24; ROI Aff. B at 23.
Complainant alleges that, during the October 2007 discussion, Complainant asserted that S1 had assigned her clerical rather than Level 14 work and S1 replied that Complainant could not perform Level 14 work because of her medical restrictions. Complainant also alleges that S1 assigned her clerical work from October 2 through November 1 and after November 15, 2007. She states that S1 assigned her to a Level 14 project a week after the October 2007 conversation but subsequently reassigned the project to a Level 13 employee on detail to S1's group. 1 She asserts that it was stressful and demoralizing to have the project taken from her and that S1's actions constituted continued harassment. In addition, Complainant asserts that she has repeatedly asked S1 to assign her meaningful work. EEO Counselor's Report at 45-48; Formal Complaint at 6, 23-24; ROI Aff. A at 78.
S1 states that, when Complainant returned to work in October 2007, she assigned Complainant to help with the organization of records and evidence in a major fraud case. S1 sent a September 26, 2007, e-mail to the Houston INC notifying him of Complainant's medical restrictions and asking him to verify that he could accommodate Complainant. S1 states that Complainant's Program Manager position was a higher-level position and it was not S1's responsibility to find things for Complainant to do. She also states that she seldom assigns work to individuals in her Group. According to S1, she told Complainant there was no reason not to have meaningful work at Headquarters because there was so much work to be done. ROI Aff. B at 3, 22, 27, 32.
On November 1, 2007, Complainant sent the Acting Assistant Inspector in Charge (AAIC) an e-mail stating that she was working flex hours because of family issues and he should call her on her cell phone if he needed to reach her and she was not at her desk. In a November 5 e-mail, S1 told Complainant that she did not understand the reference to flex-time and that, per their discussion of November 1, Complainant's work hours were restricted. The e-mail stated that Complainant should keep a regular work schedule. It also stated that S1 would try to accommodate Complainant's personal issues but Complainant needed to work within the set parameters. Complainant alleges that she had previously discussed flex-time with S1 and that S1 retaliated against her by forwarding the e-mail to the AAIC. EEO Counselor's Report at 35-36, 46; Formal Complaint at 7.
By letter dated November 14, 2007, the AMO informed the HR Analyst that, per her request, he had reviewed Complainant's medical documentation and spoken with Complainant's psychologist. The AMO believed Complainant was fit to return to full duty but wanted to speak with Complainant's psychiatrist before finalizing the certification. The HR Analyst sent Complainant a November 16, 2007, e-mail asking Complainant to complete a medical release to allow the AMO to talk to Complainant's psychiatrist about Complainant's medication. Agency Prehearing Report Ex. 2e; ROI Aff. A at 51.
Complainant alleges that, on November 14, 2007, she asked S1 if S1 knew that the AMO had lifted her restrictions. She asserts that S1 became upset with her for giving her medical information to someone outside her supervisory chain. She also asserts that her doctor sent the medical documentation directly to the AMO because the doctor wanted to speak directly to the AMO. EEO Counselor's Report at 46; Formal Complaint at 7.
On November 15, 2007, Complaint sent an e-mail to the AAIC stating that she needed to work at home on November 15 and 16 because the city was doing work on her property. Later in the day, S1 sent Complainant an e-mail questioning why Complainant had contacted the AAIC rather than S1, refusing to authorize Complainant to work from home under Complainant's "current working conditions, the restrictions," and telling Complainant to obtain prior authorization when she is not going to be in the office. S1 stated that she would not require Complainant to use leave for November 15 but directed Complainant to submit a leave slip if she would not to be in the office on November 16. Complainant replied that she was working with the AAIC on a project, stated that S1 had told her earlier in the week that Complainant should contact the AAIC about her restrictions, asserted that she was being held to a different standard, questioned why her restrictions were relevant to working from home, and accused S1 of harassment. She stated that she wanted to discuss the matter with a neutral party such as the Deputy Chief Inspector. Complainant took sick leave on November 16 and 19, 2007. EEO Counselor's Report at 28-30; ROI Aff. A at 79, 88-90; Agency Prehearing Report Ex. 5q.
Complainant forwarded the e-mails to S1's supervisor, the Assistant Chief Inspector (ACI), on November 16. Complainant noted that she had previously left messages for the ACI, asked the ACI to let her know if there was someone else she could contact, alleged that S1 had a vendetta against her, questioned whether she was being punished for going on sick leave or filing a class action,2 and accused S1 of harassment and retaliation. The ACI states that she received the forwarded e-mails and one voice message from Complainant but did not respond to them because she believed Complainant should follow the appropriate channels and did not believe that the situation involved harassment. She states that S1 is a caring and sensitive manager and she "felt it highly unlikely and next to impossible" for S1 to engage in harassment. She acknowledges that an investigation into Complainant's harassment allegation was not conducted. ROI Ex. 10, id. Aff. C at 3-4.
The Agency's Policy on Workplace Harassment directs employees who believe they are the victims of harassment to bring the matter to the attention of a supervisor, a manager, or the manager of Human Resources. It states, "Any manager or supervisor who receives a complaint must see that a prompt and thorough investigation is conducted and ensure the harassment/inappropriate conduct does not happen again." The policy notes that retaliation against employees who raise harassment claims is illegal and can result in disciplinary action. ROI Ex. 32.
Complainant sought EEO counseling on November 20, 2007, and the EEO Counselor interviewed her on December 10, 2007. Complainant alleged that S1 had discriminated against her on the bases of sex, disability, and reprisal for EEO activity. In a January 11, 2008, statement to the EEO Counselor, S1 denied discriminating against Complainant. She stated that she was aware Complainant was involved in a lawsuit but did not know the nature of the action. S1 states that she became aware of the instant complaint on January 11, 2008. EEO Counselor's Report at 1, 22-23; ROI Aff. B at 2.
In the meantime, on January 7, 2008, S1 submitted a request to send Complainant for a Fitness for Duty Examination (FFDE). S1 stated in the request that, since her return from extended sick leave, Complainant had exhibited behavior that caused S1 to question Complainant's ability to make sound decisions, work effectively with others, and take normal supervision. She asserted that Complainant became emotional and non-cooperative when questioned about actions or given direction about the circumstances of her restricted duty. S1 stated that, since October, there had been more than eight times when Complainant had worked more than eight hours per day. According to S1, Complainant became defensive when questioned about it and said she did not know she was restricted to eight hours. S1 also stated Complainant failed to follow procedures and directions related to her restricted duty. As an example, S1 noted that she and the HR Analyst had told Complainant several times to provide S1 with information about her condition. According to S1, Complainant attended threat-management training on November 13 on her own initiative and became argumentative when S1 told her that she needed official notice before she was cleared to return to threat-management duties. S1 characterized Complainant's November 15 e-mail to her as "a scathing message from [Complainant] totally distorting previous conversations about her reporting responsibilities and accusing [S1] of harassing her." She stated that Complainant became very agitated when S1 called her to discuss the situation. In addition, S1 found Complainant's allegation that S1's micro-management caused Complainant's need for sick leave in July 2007 "disturbing" because Complainant's medical documentation had indicated that Complainant's condition began in September 2005 and intensified in January 2006. ROI Ex. 11.
The ACI approved the FFDE request on January 10, 2008. She states that she based her approval on the written justification that S1 submitted, a discussion with S1, and her knowledge of S1 as a concerned manager. ROI Ex. 11; id. Aff. C at 2.
On January 11, 2008, after speaking with Complainant's psychiatrist, the AMO sent the Agency's National Medical Director a letter confirming that Complainant was not taking medication and reiterating his determination that Complainant could return to work. He noted that the psychiatrist had stated that Complainant was doing well without medication, which she had discontinued a month earlier. Agency Prehearing Report Ex. 2f.
On January 15, 2008, the HR Analyst notified S1 that the AMO had spoken with Complainant's physician and cleared Complainant to return to full duty. The HR Analyst stated that the FFDE request had been forwarded to the AMO and that employees usually are placed on administrative leave pending review of FFDE requests. S1 notified Complainant that, although her restricted work status had been lifted, a recommendation for a FFDE had been submitted. S1 placed Complainant on administrative leave pending the outcome of the FFDE. ROI Ex. 12.
The AMO reviewed the FFDE request and, on January 17, asked the HR Analyst for more information. He noted that, effective November 21, 2007, Complainant had withdrawn her previous authorization for him to contact her psychologist. The AMO stated that the request appeared sound but he wanted the following information before making a final decision: descriptions of any unusual behavior occurring after November 16, assigned tasks that Complainant had been unable to perform and specific performance problems, any health-related leave taken since Complainant's return to full duty, and copies of information that had been added to Complainant's employee medical file since her return to full duty. Agency Prehearing Report Ex. 2g.
On January 18, the HR Analyst sent S1's response to the AMO. S1 replied that she had limited contact with Complainant after November 16, when Complainant "was very agitated about not being able to work from home." She stated that the Houston INC had told her Complainant's work hours were inconsistent. She also stated that Complainant's poor performance "has been of the nature of taking actions contrary to instructions given." Noting that she had been Complainant's supervisor for just a short time and had tried to be supportive, S1 found Complainant's accusations about her "particularly puzzling." S1 stated,
I was informed last week that [Complainant] has filed an EEO claim against me. (I had no prior knowledge of this claim before or during the process of making the FFDE.) Her allegations in the EEO complaint have confirmed to me that she is seeing a distorted picture of what is going on around her at work. She takes situations out of context, is jumping to conclusions and making accusations without having facts to support the claims. . . . She looks at any direction, which differs from how she thinks it should be, as harassment.
S1 stated that she had dealt with difficult employees and poor performers but had never experienced the type of behavior that Complainant exhibited. Finally, S1 stated that Complainant's last use of sick leave was on November 26, 2007. Agency Prehearing Report Ex. 1b.
After reviewing the additional information, the AMO sent the HR Analyst a January 20, 2008, letter concurring with the FFDE request. The AMO again noted that Complainant had withdrawn authorization for him to speak with her psychologist and stated that she had discontinued her medication without prior authorization from her psychiatrist. He based his decision on his understanding that Complainant appeared agitated, worked irregular hours, acted in a manner atypical of experienced inspectors, showed poor performance by acting contrary to instructions, and "held what was viewed as a distorted picture of what was going on around her at work." The AMO noted that Complainant "apparently viewed directions that differed from her opinions about how things should be done as harassment." Based on the available information and the safety-sensitive nature of Complainant's job, the AWO recommended sending Complainant for the FFDE. Agency Prehearing Report Ex. 2h.
On January 24, 2008, the Agency's National Medical Director informed the HR Analyst that the matters described in the FFDE request appeared to be performance and conduct related and should be treated as an administrative rather than a medical issue. The Agency did not send Complainant for the FFDE. See Agency Prehearing Report Ex. 1a.
Complainant asserts that being placed on administrative leave embarrassed her because other employees knew that she was relieved of her accountable property and walked off the premises. She alleges that the circumstances surrounding her return to work caused her further embarrassment because, when she tried to retrieve her accountable property, she had to explain that she had permission to return to duty. She also alleges that another Postal Inspector (Comparator 2) who returned to work from sick leave was not relieved of his accountable property and placed on sick leave. ROI Aff. A at 10.
S1 states that she placed Complainant on administrative leave because that is the normal process when FFDEs are involved. She also states that she asked for the FFDE because Complainant "demonstrated problems following instructions, worked outside of the restricted work conditions, and exhibited overly emotional reactions to typical office situations." She asserts that Complainant's indications that she could not work with S1 was "extremely odd" because Complainant had been assigned to S1 for just a short time and they had had little interaction. S1 states that she did not request a FFDE for Comparator 2 because he had not displayed behavior that caused her to question his judgment. ROI Aff. B at 4-6.
On February 1, 2008, S1 called Complainant to tell her that she should return to work on Monday, February 4, and be prepared to travel to Washington, D.C. Complainant took annual leave on February 5-6 and traveled to Washington on February 7-8. On February 26, S1 called Complainant to ask why she was not in Washington and Complainant replied that she had needed to care for her parents. When Complainant stated that she could not be in Washington every week and her previous bosses had approved her schedule, S1 replied that Complainant's current position was different from her previous position. Complainant traveled to Washington on February 28. ROI Aff. B at 8-9, 21-22.
In a memorandum Complainant received February 29, 2008, S1 directed Complainant to be at the Agency's Arlington, Virginia, office from 12:00 noon on Mondays through 12:00 noon on Fridays to establish contacts with customers and develop liaisons with group members. S1 stated that the travel schedule would continue until Complainant established relationships sufficient to support working from a distance. Complainant sent S1 a March 7 e-mail asserting that she was capable of performing her job duties from Houston, she was willing to travel when necessary, commuting to Washington would cause a hardship on her family life, S1's directive unnecessarily increased the Agency's travel expenses, and the directive appeared to be punitive. In a memorandum received by Complainant on April 4, 2008, S1 revised the travel schedule to require Complainant to be in Virginia from Tuesday through Thursday and to work in the Houston office on Mondays and Fridays. S1 stated that she would reconsider the requirements after eight weeks. ROI Exs. 18-20.
Complainant asserts that she told S1 that weekly travel creates a hardship for her because she has a minor at home and must care for her elderly parents and because travel exacerbates her sleep problems. She also asserts that S1 was aware that mandatory travel has an adverse affect on her health and her doctor had previously restricted her travel. She states that S1 suggested that she move to Washington when she first came to S1's group, tried to convince her to agree to a six-month detail to Washington, and told her that S1 is uncomfortable having direct reports live in remote locations. Noting that the Agency is under financial strain, Complainant argues that the travel requirement is punitive. Complainant states that another Postal Inspector (Comparator 3) who is assigned to the IRS Group works remotely, travels to Washington when needed, and sets his own travel schedule. ROA Aff. A at 57-60.
S1 states that, when she initially allowed Complainant to set her own travel schedule, Complainant spent insufficient time in the Virginia office. She also states that the travel requirements were designed to help Complainant develop a workload and contacts that would enable her to be productive from the Houston office. She states that Complainant serves as an investigative and IT projects coordinator, the IT staff and Complainant's primary customers are in the Washington area, and Complainant must establish contacts with the staff and customers. According to S1, she issued the travel requirements because Complainant had not administered her travel in a way that would make her productive when in the Washington area. In addition, S1 asserts that Complainant's travel is intrinsic to the job and included in the Group's operational budget. S1 states that she did not issue mandatory travel instructions to Comparator 3 "because he has been able to manage his travel, schedule appointments and meetings and meet performance objectives without constant supervision and direction." She also states that Comparator 3 was assigned to the Group longer than Complainant was and traveled to Virginia when necessary. S1 asserts, "During the time period between April 26 through May 23, 2008 he has traveled to Rosslyn, VA during nine of the 15 weeks [sic]." ROI Aff. B at 8-10, 22-23.
In an April 29, 2008, e-mail to S1, Complainant stated that, as discussed, she could work at the Houston office but was unable to travel to Washington that week because of family obligations. Complainant took sick leave for dependent-care purposes from May 5-9 and was in Washington May 14-15, 2008. She submitted an e-mail request for training on May 16, but S1 did not respond to it because Complainant was absent from work. In a May 22, 2008, e-mail to S1, Complainant stated that she would be taking sick leave because "the continued harassment by [S1] has left [Complainant] in need of time away." Complainant took sick leave from May 22 through December 31, 2008. ROI Exs. 21-22, id. Affs. A 79, 83, B 28, 53, 60-63; Agency Prehearing Report Ex. 6.
Complainant asserts that the alleged discrimination has increased her mental stress and forced her to take an extended medical leave of absence. She requests compensatory damages, an end to mandatory travel and the alleged harassment, restoration of leave used as a result of the alleged harassment, and to be assigned meaningful work. In addition, Complainant requests "any failure to meet the 2.0 average Leap at the end of the current fiscal year, as a result of [her] being placed on Administrative Leave, to not be held against [her]."3 ROI Aff. A at 12-13.
On February 10, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when:
1. on October 27, 2007, the S1 asked Complainant to resign from the Agency's CLP;
2. on October 26, 2007, Complainant complained to S1 that she had been assigned clerical work rather than Level 14 work and S1 replied that Complainant could not perform Level 14 work because of her medical restrictions;
3. on October 26, 2007, during a discussion about Complainant's June 2007 request to engage in outside employment, S1 stated that she needed more information and would discuss the matter further after Complainant's restrictions were removed;
4. from October 2 through November 1 and after November 15, 2007, Complainant was treated in a demoralizing manner by being assigned clerical work;
5. on November 5, 2007, S1 sent Complainant an e-mail chastising her for working flex-time;
6. on November 14, 2007, S1 became upset with Complainant for giving medical information to the AMO rather than S1;
7. on November 15, 2007, S1 sent Complainant an e-mail that chastised her for telling the AAIC that she would be working from home and that stated S1 would not allow Complainant to work from home under her current medical restrictions;
8. on November 15, 2007, S1 called Complainant and told her that she had overstepped her bounds on a project; and
9. on January 15, 2008, S1 placed Complainant on administrative leave pending a Fitness for Duty Examination (FFDE). 4
Complainant identified the dates of alleged discrimination as "October 26, 2007 and continuing" and asked "to have any and all harassing and disparate treatment toward me by management to cease". Formal Complaint at 1.
By letter dated March 6, 2008, the Agency accepted Complainant's allegation concerning administrative leave for investigation. The Agency characterized the remainder of the complaint as alleging discrimination based on sex, disability, and retaliation (prior EEO activity involving a class action) when Complainant was "subjected to harassment when: (1) in June, 2007, management refused [her] request to conduct outside employment as a real estate broker, and (2) on October 26, 2007, management requested/suggested that [she] resign/withdraw from the Career Leadership Program (CLP)." The Agency dismissed the CLP allegation on the basis that it failed to state a claim. In that respect, the Agency stated that Complainant had not resigned from CLP and isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. Although the Agency initially dismissed the outside-employment allegation as untimely, it later accepted Complainant's request to amend her complaint to allege that the Agency had retaliated against her for the instant complaint when her request to engage in outside employment was denied on October 26, 2007.
Complainant subsequently sought to amend her complaint to allege that the agency had retaliated against her for the instant complaint when S1 placed her on mandatory travel on April 4, 2008. The Agency accepted that allegation for investigation on May 15, 2008. In response to the Investigator's questions, Complainant added sex and disability as bases for the alleged discrimination. ROI Aff. A.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request.5 Consequently, 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.
In its final agency decision (FAD), the Agency found that its March 6, 2008, letter properly dismissed some of Complainant's allegations. The Agency also found that Complainant had failed to establish a prima facie case of disability-based discrimination with respect to the accepted allegations because she had not shown that she was an "individual with a disability" within the meaning of the Rehabilitation Act.6
With respect to the October 27, 2007, denial of Complainant's request to engage in outside employment, the Agency found that Complainant had failed to establish a prima facie case of sex discrimination because she was not similarly situated to Comparator 1. In that regard, the FAD stated that Comparator 1 wanted to sell his residence upon retirement whereas Complainant had 35 properties listed for sale. The Agency also found that Complainant had not established a prima facie case of reprisal because she had not provided sufficient evidence to raise an inference of discrimination. Noting that the class action was filed in May 2005 and Complainant submitted her outside-employment request in June 2007, the FAD stated that the temporal relationship between the two actions was too distant to support a finding of causation. The FAD also noted that the instant complaint could not be the basis of reprisal because Complainant sought EEO counseling after the denial of her outside-employment request. In addition, the Agency found that Complainant had not shown that management's explanations for its action were a pretext for discrimination.
The Agency also found that Complainant had not established a prima facie case of sex discrimination concerning her placement on Administrative Leave. The FAD stated that Comparator 2 was not similarly situated to Complainant because he had not displayed any behavior that caused S 1 to question his judgment or mental capacity. The Agency concluded that Complainant had established a prima facie case of reprisal but had not shown that S1's explanation was a pretext for discrimination. In that regard, the FAD stated that Complainant's "overly-emotional and dysfunctional behavior seems to have been the motivating force for [S1's] request."
With respect to Complainant's allegation concerning mandatory travel, the Agency found that Complainant had failed to establish a prima facie case of sex discrimination because she was not similarly situated to Comparator 3. The FAD noted that Complainant and Comparator 3 initially were treated similarly because S1 did not issue travel requirements to either of them when she first became their supervisor. In addition, the FAD stated that Comparator 3 had met travel expectations and developed meaningful work that could be performed remotely. Although the Agency found that Complainant had established a prima facie case of reprisal, it concluded that Complainant had not shown that S1's reasons were pretextual. The FAD stated that it was not unreasonable for S1 to want Complainant to establish contacts and relationships at Headquarters.
CONTENTIONS ON APPEAL
The parties raise no new arguments on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens of proof in a disparate-treatment claim follows 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The United States Supreme Court has held that, where the Complainant presents direct evidence of discrimination, use of the McDonnell Douglas test is inappropriate. See McDonnell Douglas, 411 U.S. at 802; Trans World Air Lines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).
With respect to claims of reprisal, the Commission has stated,
Direct evidence of a retaliatory motive is any written or verbal statement by a respondent official that s/he undertook the challenged action because the charging party engaged in protected activity. Such evidence also includes a written or oral statement by a respondent official that on its face demonstrates a bias toward the charging party based on his or her protected activity, along with evidence linking that bias to the adverse action. Such a link could be shown if the statement was made by the decision-maker at the time of the adverse action.
EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8-II.E.1, at 8-17 (May 20, 1998) (EEOC Compliance Manual); see also Bowers v. Dep't of Def., EEOC Appeal No. 0720070012 (Mar. 22, 2010) ("Direct evidence of retaliation is any written or verbal policy or statement made by an agency official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action"); Tellez v. Dep't of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005).
If there is credible evidence that retaliation was a motive for the challenged action, a finding of reprisal should be found. Evidence concerning a legitimate motive for the action is relevant only to relief. EEOC Compliance Manual � II.E.1, at 8-16.
The anti-retaliation provisions of Title VII and the Rehabilitation Act protect those who oppose discriminatory employment practices as well as those who participate in the EEO process. A complaint or protest about alleged employment discrimination, including harassment on a protected basis, constitutes opposition to discrimination. Similarly, a request for reasonable accommodation also constitutes protected activity.7 A person is protected against retaliation if he or she had a good-faith belief that the challenged practice was unlawful, regardless of whether the practice ultimately is found to be unlawful. Id. � 8-II.B, at 8-3-9.
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual � 8.II.D at 8-11-16.
Complainant's Prior EEO Activity
Complainant engaged in prior EEO activity when she participated in the 2005 class action alleging that the Agency discriminated against African-American females in promotions. She also engaged in protected activity when she sought EEO counseling and filed the instant complaint. Further, Complainant's requests for sick leave and to return to work with a travel restriction constituted requests for reasonable accommodation and therefore were protected activity. Finally, Complainant's allegations that S1 was harassing her because of her participation in the class action and use of sick leave also constituted protected activity. We find that Complainant had a reasonable and good faith belief that S1's actions constituted unlawful harassment and that she opposed the harassment in a reasonable manner when she complained to the ACI. See EEOC Compliance Manual � 8-II.B, at 8-3-9; Enforcement Guidance on Reasonable Accommodation at Questions 1, 19.
Allegation 3: October 2007 Denial of Request to Engage Outside Employment
S1 states that she denied Complainant's request for outside employment because Complainant's June 2007 email contained insufficient information, Complainant had not been forthcoming about the extent of her real estate activity, and Complainant was working under restrictions and could not fully perform the duties of her position. RIO Aff. B at 12-15. Complainant's request for a one-month travel restriction constituted a request for reasonable accommodation, and the agency granted the request when it allowed Complainant to work without travel. Although it was the AMO who initially imposed additional work restrictions on Complainant, it appears that Complainant's psychologist subsequently agreed to the additional restrictions. ROI Ex. 8, Agency Prehearing Report Ex. 2a-d.
The denial of Complainant's the request to engage in outside employment is an adverse action that is reasonably likely to deter a reasonable employee from engaging in protected activity. S1's reference to Complainant's medical restrictions constitutes direct evidence of retaliatory motivation, and her reliance on the restrictions as a reason for denying Complainant's request constitutes retaliation for protected activity. The Agency may not punish Complainant for requesting or using reasonable accommodation. Accordingly, we find that the Agency discriminated against Complainant on the basis of reprisal when, in October 2007, it denied her request to engage in outside employment. See EOC Compliance Manual � 8-II.D,E, at 8-11-17; Enforcement Guidance on Reasonable Accommodation at Question 19.
We also find that, absent the retaliatory motivation, the Agency would have allowed Complainant to submit additional information to support her request. S1 states that Complainant provided insufficient information and was not forthcoming about the extent of her real estate activities. ROI Aff. B at 13. In October 2007, however, S1 told Complainant that she would not approve the request while Complainant was on restrictions. Id. There is no showing that Complainant subsequently had an opportunity to provide additional information or, if necessary, to modify her request. In that respect, we note that S1 apparently gave Comparator 1 an opportunity to provide additional information and to modify his request for outside employment. Compare ROI Ex. 24 (Comparator 1's request to engage in outside employment states that he will sell real estate for a commission) with id. Ex. 25 (approval of request states that Comparator 1's primary reason for the request is to sell his own residence). Accordingly, we direct the Agency to provide Complainant with an opportunity to provide additional information concerning her request to engage in outside employment and to consider the request without regard to Complainant's medical restrictions or other EEO activity or protected bases.
Having found that the Agency discriminated against Complainant on the basis of reprisal, we need not determine whether the Agency discriminated on the basis of sex or disability when it denied Complainant's request to engage in outside employment.
Allegation 7: November 15, 2007 E-mail Regarding Working at Home
In a November 15, 2007, e-mail, S1 questioned why Complainant had contacted the AAIC rather than S1 about working from home on November 15-16 and stated that she would not allow Complainant to work from home under her "current working conditions, the restrictions." Complainant used sick leave on November 16, 2007. EEO Counselor's Report at 28-30; ROI Aff. A at 88-90; Agency Prehearing Report Ex. 5q.
The denial of Complainant's request to work at home is an adverse action that is reasonably likely to deter a reasonable employee from engaging in protected activity. S1's reference to Complainant's medical restrictions constitutes direct evidence of retaliatory motivation, and her reliance on the restrictions as a reason for denying Complainant's request constitutes retaliation for protected activity. There is no evidence that Complainant's medical restrictions prevented her from working at home. Accordingly, we find that the Agency discriminated against Complainant on the basis of reprisal when it denied her request to work from home on November 16, 2007, and instead required her to take sick leave. See EOC Compliance Manual � 8-II.D,E, at 8-11-17; Enforcement Guidance on Reasonable Accommodation at Question 19.
Having found that the Agency discriminated against Complainant on the basis of reprisal, we need not determine whether the Agency discriminated on the basis of sex or disability when it denied her request to work at home on November 16, 2007.
Allegation 9: January 15, 2008, Placement on Administrative Leave
The Agency placed Complainant on Administrative Leave pending the FFDE request four days after the AMO, having spoken with Complainant's psychiatrist, cleared Complainant to return to full duty. In her attempt to justify the request for the FFDE, S1 expressly noted that Complainant had accused her of harassment. The ACI approved the request based on S1's written statement, a discussion with S1, and her knowledge of S1 as a concerned manager. After the AMO requested more information, S1 again referred to Complainant's harassment accusation and cited Complainant's EEO complaint as support for her assertion that Complainant had a "distorted picture of what was going on around her at work." The AMO, in concurring with the request, stated that Complainant "held what was viewed as a distorted picture of what was going on around her at work" and "apparently viewed directions that differed from her opinions about how things should be done as harassment." ROI Ex. 11; id. Aff. C at 2; Agency Prehearing Report Exs. 1b, 2h.
Although the Agency ultimately did not send Complainant for the FFDE, it subjected her to an adverse action when it placed Complainant on Administrative Leave pending the FFDE. A reasonable person likely would be deterred from complaining about harassment or filing an EEO Complaint if such complaints resulted in FFDE requests and placement on Administrative Leave. S1's explicit references to Complainant's harassment allegation and EEO Complaint, and the AMO's casual acceptance of those references as evidence of Complainant's allegedly "distorted view" of her work environment, constitute direct evidence of retaliatory motivation. The Agency's reliance on Complainant's allegations and EEO Complaint as reasons to place Complainant on Administrative Leave pending the FFDE constitutes reprisal for protected activity.
The Agency has a continuing duty to promote the full realization of equal opportunity in the employment, advancement, and treatment of employees. Garcia v. Dep't of the Treasury, EEOC Appeal No. 07A10040 (Jan. 13, 2003) (citing Crespo v. U.S. Postal Serv., EEOC Request No. 05920842 (Sept. 17, 1993)). S1, the ACI, and the AMO treated Complainant's harassment allegation and EEO Complaint as reasons to question Complainant's fitness for duty. Rather than encourage equal opportunity in the workplace, they punished Complainant for engaging in protected activity. We find that the Agency discriminated against Complainant on the basis of reprisal when it placed her on Administrative Leave on January 15, 2008.
Having found that the Agency discriminated against Complainant on the basis of reprisal, we need not determine whether the Agency discriminated on the basis of sex or disability when it placed Complainant on Administrative Leave.
Allegation 10: April 4, 2008, Mandatory Travel Schedule
We assume for purposes of analysis, without so finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act and that she has established a prima facie case of discrimination based on disability, sex, and reprisal.
We find that the Agency has articulated a legitimate, nondiscriminatory reason for issuing the mandatory travel schedule. S1 states that travel is intrinsic to Complainant's job, Complainant must establish contacts with staff and customers in the Washington area, Complainant spent insufficient time in the Virginia office when she was allowed to set her own travel schedule, and S1 issued the travel schedule to help Complainant develop a workload and contacts. ROI Aff. B at 8-10, 22-23.
Complainant has not shown the Agency's reasons to be pretextual. Although Complainant asserts that S1 was aware that travel exacerbated her sleep problems, there is no evidence that Complainant requested an extension of the one-month travel restriction that her psychologist recommended in September 2007. Complainant's statements that S1 wanted her to work in the Washington area when she first came to S1's group and was uncomfortable having direct reports live in remote locations support S1's assertion that she wanted Complainant to travel for work-related rather than discriminatory reasons. Although Complainant asserts that she can perform her job from Houston, she has not rebutted S1's assertion that Complainant spent insufficient time in Virginia when allowed to set her own travel schedule. Moreover, S1's willingness to modify the mandatory schedule (from Mondays through Fridays to Tuesdays through Thursdays) and to reconsider the requirement after eight weeks demonstrates an effort to work with Complainant. We find that Complainant has not shown by a preponderance of the evidence that the Agency discriminated against her on the basis of sex, disability, or reprisal when it issued the mandatory travel schedule.
Harassment
Complainant raises a number of other matters that, along with the allegations discussed above, form the basis of her claim that the Agency subjected her to harassment based on sex, disability, and reprisal. In its March 6, 2008, acceptance letter, the Agency characterized the harassment allegation as involving only the denial of permission to engage in outside employment and S1's suggestion that Complainant resign from CLP. Although the Agency subsequently accepted the outside-employment allegation, it dismissed the CLP/harassment allegation on the ground that it failed to state a claim.
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disability. 29 C.F.R. �� 1614.103, 106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If a complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997), the Commission stated that:
a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. Thus, a claim of harassment based on the complainant's race, color, religion, sex, national origin, age, or disability, should not be dismissed for failure to state a claim where the complainant has made factual allegations which, when construed in the light most favorable to the complainant, i.e., when considered together and treated as true, are sufficient to state a claim . . . .
The Commission finds that Complainant's allegations, viewed in their entirety and in the light most favorable to Complainant, state a claim of a hostile work environment. Accordingly, we find that the Agency erroneously dismissed Complainant's harassment allegation.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII or the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris , 510 U.S.at 23.
To establish a claim of harassment based on sex, disability, or reprisal, Complainant must show that: (1) she is a member of the 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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, 510 U.S. at 21. 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).
With respect to element 5, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Indust., 524 U.S. at 762-63; Faragher, 524 U.S. at 807-08; EEOC Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Vicarious Liability Guidance).
Complainant alleges that the Agency subjected her to harassment when, in addition to the matters discussed above, S1 asked her to resign from the CLP, assigned her clerical work, sent her an e-mail concerning flex-time, became upset with her for giving medical information to the AMO rather than S1, and told her she had overstepped her bounds on a project. We find that these additional matters were unrelated to Complainant's protected status and therefore do not constitute harassment on a protected basis.
S1 states that she accommodated Complainant's medical restrictions by assigning her to help organize records in a major fraud case and asked the Houston INC to verify that he could accommodate Complainant. Although Complainant objects to the type of work she was given, she acknowledges that S1 assigned her to a Level 14 project on November 1, 2007, after Complainant told S1 she was dissatisfied with the level of work given to her. Complainant alleges that S1 told her she had overstepped her bounds on the project and discriminatorily reassigned it to another employee, but the record indicates that Complainant herself thought that at least some of the work she undertook duplicated the work of the other employee.
On, the November 5, 2007, after Complainant informed the AAIC that she was working flex-time because of family issues, S1 sent an e-mail directing Complainant to keep a regular work schedule and stating that she would try to accommodate Complainant's personal issues. EEO Counselor's Report at 35-36. The e-mail was straightforward and professional. Given that S1 was Complainant's direct supervisor, we do not find that the e-mail constituted an act of harassment. For the same reason, we do not find S1's alleged displeasure that Complainant had submitted medical documentation to the AMO rather than S1 to be an act of harassment.
Finally, the evidence does not establish that S1's suggestion that Complainant resign from CLP was connected to Complainant's protected status. In addition, the mere suggestion that Complainant resign, even when viewed in light of Complainant's other allegations, did not create or contribute to a hostile work environment.
As noted above, we find that the Agency discriminated against Complainant on the basis of reprisal when it denied her request to engage in outside employment in October 2007, refused her request to work at home on November 16, 2007, and placed her on Administrative Leave on January 15, 2008. We also find that, even when viewed together, these adverse actions do not constitute conduct sufficiently severe or pervasive to create a hostile work environment.
Having found that the Agency's conduct was not sufficiently severe or pervasive to constitute harassment, we need not determine whether there is a basis for imputing liability to the Agency. We remind the Agency, however, that it has an obligation to prevent and correct promptly harassing behavior. The Agency's Policy on Workplace Harassment states that managers who receive complaints of harassment should promptly and thoroughly investigate the complaints. ROI Ex. 32. Complainant notified the ACI on November 16, 2007, that she believed S1 had subjected her to harassment and retaliation. Id. Ex. 10. The ACI did not investigate Complainant's allegation. Id. Aff. C at 3-4. Instead, the ACI approved a document that, on its face, used the allegation as a basis for requesting the FFDE. Id. Ex. 11. As noted above, the Agency's actions fell far short of the Agency's obligation to promote the full realization of equal opportunity in the workplace.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part the Agency's final decision and REMAND the complaint for further processing in accordance with our Order below.
ORDER (D0610)
Within sixty (60) days of the date this decision becomes final, the Agency is so ORDERED:
1) The Agency shall make a determination on Complainant's request to engage in outside employment without regard to Complainant's EEO activity or protected bases. If the Agency needs additional information to make its determination, it identify the necessary relevant information and shall afford Complainant an opportunity to submit the necessary information. Complainant shall cooperate in the Agency's efforts to make the determination and shall provide all necessary relevant information requested by the Agency.
2) The Agency shall restore the sick leave taken by Complainant on November 16, 2007.
3) The Agency shall pay Complainant back pay, including any Law Enforcement Availability Pay, that she lost as a result of being placed on Administrative Leave. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
4) The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of the Agency's failure to provide a reasonable accommodation, and shall afford Complainant an opportunity to establish a causal relationship between the denial and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she is entitled to as a result of the discrimination which resulted from her protected activity, and shall provide all relevant information requested by the Agency. The Agency shall issue a new agency decision awarding compensatory damages to Complainant within sixty (60) days of the date this decision becomes final.
5) The Agency shall provide eight (8) hours of EEO training to the involved management officials regarding their responsibilities under EEO laws.
6) The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the Agency shall furnish documentation of their departure date(s).
7) The Agency shall post a notice in accordance with the paragraph below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Headquarters in Arlington, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 29, 2012
Date
1 Complainant sent a November 15, 2007, e-mail to the Acting Assistant Inspector in Charge (AAIC) discussing her work, the AAIC replied that Complainant should touch base with another employee who was working on a project, and Complainant replied that the work sounded redundant and she would discuss her involvement with S1. Formal Complaint at 18. She alleges that, during a November 15 telephone call, S1 told her that she had overstepped her bounds on the project and that the project had been assigned to a Level 13 employee. EEO Counselor's Report at 47-48; Formal Complaint at 23-24.
2 Complainant is a class agent in a class action filed against the Agency in May 2005. The action alleges that the Agency discriminated against African-American females in promotions. Complainant asserts that S1 was aware of Complainant's participation in the class action because it alleges discrimination involving the CLP and S1 had participated in the initial discussions about the alleged discrimination, had considered participating in the class action, was promoted after the action was initiated, and was a committee member of the CLP board. ROI Ex. 3; id. Aff. A at 2, 58.
S1 states that she was aware that a group of African-American females had talked to a lawyer about filing a lawsuit. She also states that Complainant had papers concerning the suit but that she did not "did not discuss the particulars of the suit with" Complainant. ROI Aff. B at 2.
3 Complainant's salary consisted of base pay, locality pay, and Law Enforcement Availability Pay (LEAP). LEAP compensates law enforcement officers for working irregular and unscheduled hours beyond a 40-hour work week. Postal Inspectors whose annual average of unscheduled hours is at least two hours per regular workday are entitled to receive LEAP equaling 25 percent of base pay plus locality pay. See Agency Prehearing Report Ex. 8c-d.
On November 10, 2008, S1 notified Complainant that her fiscal year 2008 LEAP hours were in arrears, her LEAP pay would be suspended until the deficit was satisfied, and the Agency would seek reimbursement if Complainant had received an overpayment of salary. Complainant's Prehearing Report Ex. 9. It is not clear whether any portion of the deficit resulted from Complainant's placement on Administrative Leave.
4 Complainant attached a "Dates of Action/Incident" document, containing the first eight incidents, to her Information for Pre-Complaint Counseling form and her formal complaint. EEO Counselor's Report at 44-48; Formal Complaint at 5-9. The document alleged, among other things, that the denial of Level 14 work was in retaliation for having been on extended sick leave. It also alleged that incidents 2, 7, and 8 were examples of continued harassment. Complainant attached a narrative document, alleging that the ninth incident was further evidence of harassment, to her formal complaint. Formal Complaint at 4. The EEO Counselor's Report and January 23, 2008, Notice of Right to File addressed only Complainant's allegations that S1 asked her to resign from CLP, denied her request to engage in outside employment, and placed Complainant on administrative leave.
5 On March 5, 2009, Complainant moved to amend her complaint to allege that the Agency discriminated against her on the bases of disability and reprisal when it placed her in Absent Without Leave status on January 19, 2009, and denied her a step increase on February 3, 2009. In the Order Forwarding the Complaint for a Final Agency Decision and Denying Request to Amend, the AJ denied Complainant's motion because it came after discovery, the prehearing conference, and the scheduling of the hearing. The AJ stated that Complainant could file a new complaint with the Agency.
6 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Under the analytical framework as it existed before the enactment of the ADA Amendments Act, an "individual with a disability" meets at least one of the following criteria: has a physical or mental impairment that substantially limits one or more of the individual's major life activities; has a record of such an impairment; or is regarded as having such an impairment. See 29 C.F.R. � 1630.2 (g)(1).
7 A request for an adjustment or change at work, including a request for leave, is a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice 915.002, at Question 1 (Oct. 12, 2002) (Enforcement Guidance on Reasonable Accommodation); see also id., n.19 (citing McGinnis v. Wonder Chemical Co., 5 AD Cas. (BNA) 219 (E.D. Pa. 1995) (employer on notice that accommodation had been requested because: (1) employee told supervisor that his pain prevented him from working and (2) employee had requested leave under the Family and Medical Leave Act)). An employer may not penalize an employee who missed work during leave taken as a reasonable accommodation. To do so would constitute retaliation for the employee's use of a reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 19.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
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