0120172508
07-17-2018
Ellan C.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ellan C.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120172508
Hearing No. 550-2011-00469X
Agency No. FBI-2010-00196
DECISION
On July 12, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 12, 2017 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission AFFIRMS the final agency order.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as an Intelligence Analyst in the San Francisco Division (SFD) of the Agency in California. On July 30, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (back, arm and leg injuries) and age (43 at time of incident) when, from May 2010 until she filed her complaint:
1. the Agency issued Complainant a file review that rated her deficient in numerous categories,
2. management denied Complainant a recommendation for transfer to Agency Headquarters, and
3. the Agency denied Complainant a permanent transfer to the San Jose Resident Agency (SJRA) of SFD.
The Agency accepted Complainant's claims for investigation.
Investigation
Complainant's Statement
During the EEO investigation, Complainant stated that she filed a formal reasonable accommodation request with the Agency. Complainant stated that she asked to be permanently assigned to SJRA, which was about seven miles from her home in San Jose. Complainant stated that management assigned her to Squad CT-6 in SJRA between December 1, 2009 and January 2010, and denied her request for permanent accommodation on December 7, 2009. Complainant stated that she had medical documentation recommending she not commute long distances. Complainant stated that she was assigned to the Oakland Resident Agency (ORA) of SFD in January 2010. Complainant stated that her medical problems made it difficult for her to perform her duties, and that she was in constant pain. Complainant stated, as of June 20, 2010, the Agency permanently assigned her to Squad CI-8 in SJRA.
Agency's Statement
The SFD Assistant Special Agent in Charge (S1) (no disability and 46 at time of incident) stated that management temporarily assigned Complainant to SJRA while her accommodation request was pending at Agency Headquarters. Once Headquarters denied Complainant's request, the Agency instructed Complainant to return to her assigned office at ORA. S1 stated, during a June 2008 reorganization, the Agency inquired about offices employees wanted to be assigned to and three out of the four offices Complainant chose were in ORA. S1 stated that management allowed Complainant to work a flexible schedule to reduce time spent in traffic between her home and ORA, and work in SJRA whenever she had medical appointments there. S1 stated that Complainant's immediate supervisor (S2) told him of performance issues for Complainant. S1 stated that, on December 22, 2009, he met with Complainant at her request.
The ORA Squad Supervisor, S2, (no disability and 36 at time of incident) stated that he conducted a file review with Complainant and had concerns about the timeliness of her work products. He noted that one work-product required substantive editing. S2 stated that Complainant needed to improve her written communication (substance and style) and technical expertise. S2 stated that Complainant was interested in applying for a position at the National Counter-Terrorism Center in DC but management did not support the transfer because of Complainant 's performance deficiencies. S2 also stated that the Agency allowed Complainant to work out of SJRA through December 2009 and when she had medical appointments in the San Jose area (usually two to three days per week). S2 stated that the challenge with allowing Complainant to work out of SJRA is that she was a Domain Analyst and that position works on a team with close collaboration and communication between team members. S2 stated that it was necessary for the success of the Domain team that all members sit together in ORA. Also, S2 stated that it was difficult for him to give Complainant effective guidance when she was in SJRA. S2 added that the Agency offered Complainant an Embedded Analyst position at SJRA, which she started on June 20, 2010.
Investigative Record
The record contains a Request for Reasonable Accommodation, dated August 7, 2009, in which Complainant stated that she has recurrent abdominal pain and cannot drive long distances with a seat belt on. Additionally, Complainant stated that she has various medical conditions (pinched vertebrae, gall bladder pain, fibroids, a thyroid condition), and that most of her doctors are in the San Jose area so she requested permanent reassignment to SJRA for greater ease in attending medical appointments. In a letter dated December 7, 2009, the Agency denied Complainant's request for reasonable accommodation, stating that she is not a qualified individual with a disability based on submitted medical documentation. The Agency stated that Complainant cited "abdominal pains" as her medical condition. The record contains a note, dated December 14, 2009, from Complainant's Endocrinologist stating, "Please excuse my [patient] from driving more than 30 miles as patient has several medical issues that are being addressed but are causing her myalgia, difficulty concentrating, and increased anxiety." On April 2, 2010, Complainant appealed the accommodation denial, stating that she has knee, arm, back, and foot pain, cannot stay awake for long periods, cannot sleep more than four hours at night, has memory loss and difficulty concentrating. Complainant stated that, each day to ORA, she drives over 50 miles (two hours) and rides a train 55 miles (ninety minutes) for a daily commute of three and a half hours.
Post-Investigation
Following an EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion for Summary Judgment, to which Complainant responded. On April 28, 2017, the assigned AJ issued a decision without a hearing finding that Complainant failed to show that the Agency's actions were based on discriminatory motives. The AJ stated that there is no evidence that protected bases were considerations in the Agency informing Complainant of a need for improvement in some areas and deciding not to support her application for transfer. Further, the AJ stated that the Agency was flexible regarding Complainant's need to work out of SJRA although she was not permanently assigned there. Subsequently, on June 12, 2017, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed, in which she alleged the three incidents constitute a hostile work environment.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community 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 a pretext for discrimination. 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, non-discriminatory reasons for the matters at issue. For (1) and (2), the Agency stated that it conducted a file review with Complainant and had concerns about the timeliness of her work products. The Agency stated that one work-product required substantive editing, and that Complainant needed to improve her written communication and technical expertise. For (3), the Agency stated that it temporarily assigned Complainant to SJRA while her accommodation request was pending at Agency Headquarters. It stated once Complainant had to return to ORA in January 2010, it allowed her to work a flexible schedule to reduce time spent in traffic and work in SJRA whenever she had medical appointments there. Complainant typically had medical appointments there two to three times per week. The Agency noted the difficulty in allowing Complainant to work in SJRA when the remainder of her collaborative team was in ORA. The Agency stated, in June 2010, it offered and she accepted an Embedded Analyst position at SJRA.
We assume arguendo that Complainant is an individual with a disability pursuant to the Rehabilitation Act. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes. Further, to the extent Complainant alleged that the actions discussed also created a hostile work environment, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that those actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Now we turn to the matter of reasonable accommodation. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p).
We remind Complainant that she is not entitled to the accommodation of her choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, question 9 (October 1, 2002) ("The employer may choose among reasonable accommodations as long as the chosen accommodation is effective."). In this case, for (3), the Agency stated that it temporarily assigned Complainant to SJRA while her accommodation request was pending at Agency Headquarters. It stated once Complainant had to return to ORA in January 2010, it allowed her to work a flexible schedule to reduce time spent in traffic and work in SJRA whenever she had medical appointments there (typically two or three times per week). The Agency noted difficulty in allowing Complainant to work in SJRA when the remainder of her collaborative team and supervisor were in ORA. The Agency stated, in June 2010, it offered Complainant an Embedded Analyst position at SJRA. In this case, we decline to find that the agency's actions herein constitute a violation of the Rehabilitation Act.
CONCLUSION
We AFFIRM the final agency decision implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 17, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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