Elliott L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019002736 (E.E.O.C. Aug. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002736 Agency No. 20DR-0040-2018102888 DECISION On March 5, 2019, 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 February 5, 2019, final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-1102-13 Contract Specialist at the Agency’s National Cemetery Administration Contracting Service facility in Stafford, Virginia. Complainant regularly teleworked one day per week. Until September 2017, Complainant’s first-line supervisor was a Supervisory Contract Specialist based in Washington, D.C. (S1). In September 2017, a Stafford-based Supervisory Contract Specialist (S2) became Complainant’s first-line supervisor. According to Complainant, he has moderate and persistent asthma and allergic rhinitis, an allergic reaction to mold exposure. 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. 2019002736 2 Complainant alleged that environmental conditions in the office exacerbated both his allergic rhinitis and his asthma, requiring the use of inhalers and other prescription medications. Complainant averred that the conditions in the office caused hoarseness, headaches, burning eyes, and coughing, likely due to exposure to mold spores. Complainant stated that he engaged in protected EEO activity when he requested to telework three or four days per week as a reasonable accommodation on February 3, 2017. According to S2, Complainant moved to a cubicle in the finance section of the office on February 6, 2017. S2 stated that management also had the contracting section office space tested. The Reasonable Accommodation Coordinator (HR1) stated that environmental and air quality testing showed that there was some mold in the office. HR1 stated that, although the amount of mold was not above the guidelines, management agreed to remediate the mold and clean the office and carpet. According to HR1, Complainant moving to the cubicle in the finance section was temporary until the environmental and air quality testing results were favorable in the contracting section of the office. On August 15, 2017, S1 issued Complainant a written counseling for not properly completing the market research process for a contract. According to Complainant, the counseling was unwarranted. Complainant stated that he had previously notified management about various issues with the Agency’s electronic contract management system. S1 stated that the issues Complainant had raised did not negate the fact that Complainant had not completed the market research that was necessary to award the contract in question. On November 9, 2017, S2 told Complainant that he needed to move back to the contracting section of the office no later than November 17, 2017. S2 averred that she directed Complainant to move back because the environmental test results were in the “normal range.” Because Complainant was on leave during the days leading up to November 17, 2017, he moved to a new cubicle in the contracting section on November 20, 2017. According to Complainant, his symptoms returned when he moved to the new cubicle. Complainant stated that on November 30, 2017, he asked S2 about the status of his February 3, 2017, request for additional telework as a reasonable accommodation and that S2 gave him a confusing response. Complainant stated that he called HR1 later that day to clarify the status of his reasonable accommodation and that HR1 told him that S2 had verbally disapproved his accommodation request. HR1 stated that Complainant’s original request for additional telework as a reasonable accommodation had not been approved. According to Complainant, S2 later emailed him and asked him to complete a new reasonable accommodation request form. HR1 averred that she emailed S2 to note that a new form was not necessary. On December 4, 2017, S2 and Complainant discussed his reasonable accommodation request. S2 asked Complainant to move to a different contracting cubicle for seven work days to see if his symptoms returned, since it took seven work days for his symptoms to bother him after moving back on November 20, 2017. On December 4, 2017, Complainant emailed S2 and HR1, mentioning that he did not experience symptoms while sitting in the finance area. 2019002736 3 S2 stated that she would see if there was any available space in the finance section. On December 20, 2017, HR1 informed Complainant that she would be seeking clarification of Complainant’s December 11, 2017, medical documentation, which stated that Complainant should work in a separate building. In a January 4, 2018, email, Complainant stated that he had showed his doctor photos of the contract section. In the same email, Complainant described the contracting area as confined and compact, in comparison to the open and spacious finance area. Complainant moved back to the finance area of the office. On February 20, 2018, Complainant modified his reasonable accommodation request to ask to sit in the finance section until the Contracting Service’s upcoming move to Quantico, Virginia. According to Complainant, starting around February 15, 2018, he was assigned a number of incomplete packages that were missing critical documents. Complainant stated that the procurement analyst normally returns incomplete packages to the customer before the packages are added to the queue to be assigned to Contract Specialists. Complainant alleged that, because his performance is measured starting at the time the package is assigned to him, missing documents have a negative effect on his performance metrics. According to S2, Contract Specialists are responsible for working with customers so the customers understand what documents are required. Complainant alleged that he was talking to two employee in the finance section (C1 and C2) on February 27, 2018, when S2 emerged from her office and yelled at Complainant. Complainant stated that S2 yelled that Complainant should go into the conference room if he wanted to carry on a conversation because he was disturbing someone. According to Complainant, moving to the conference room for a conversation with coworkers is not standard procedure. S2 denied yelling at Complainant, but she said that she speaks with a loud tone because she is from the “upper north east.” According to C1, S2 was very loud and condescending. Complainant stated that an IT employee had his laptop for much of the day on Tuesday, February 27, 2018, because it was being replaced. According to Complainant, S2 knew that he did not have access to his laptop and could not access work-related systems. S2 averred that she was unaware that Complainant did not have access to the systems. Complainant averred that, although Tuesday was not the normal day for status updates, as soon as he had his new laptop, S2 peppered him with questions on all of his procurement actions. The record contains a request from S2 for a 30-minute meeting at 3:30 p.m. to talk about Complainant’s open packages. According to Complainant, S2 eventually told him that he could prepare the updates for Thursday. Complainant averred that he was in the office on March 1, 2018, when there was a network outage. Complainant stated that there was a network outage while he was in the office that day. According to Complainant, S2 asked him if he had submitted a leave request for the time he appeared “offline.” Complainant did not submit a leave request, and S2 validated his time and attendance. On March 12, 2018, S2 sent Complainant an email, noting that Complainant’s telework agreement stated that he had to come into the office or take leave if he could not connect to the network for more than an hour on his telework days. 2019002736 4 Complainant initiated contact with an EEO Counselor on March 9, 2018. On April 23, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and in reprisal for prior protected EEO activity (requesting a reasonable accommodation) when: 1. On August 15, 2017, S1 issued Complainant a written counseling for his failure to properly initiate the 2268 market research process; 2. On November 9, 2017, S2 instructed Complainant to relocate to the contracting area no later than November 17, 2017; 3. On November 30, 2017, Complainant received an incomplete response to his reasonable accommodation request, which was followed by a verbal response denying the request; 4. On December 7, 2017, Complainant was told to relocate to different cubicles in the contracting area for a seven-day interval to establish a baseline of his symptoms; 5. From February 15, 2018, through March 5, 2018, S2 assigned Complainant incomplete packages, which negatively affected his work. 6. On February 27, 2018, S2 yelled at Complainant in front of other staff members; 7. On February 27, 2018, despite knowing that Complainant had been unable to access the system all day, S2 demanded a status update on all of his assignments and projects; 8. On March 1, 2018, S2 asked Complainant if he had submitted a leave request for the time he was offline due to network issues; and 9. On March 12, 2018, S2 informed Complainant that, per his telework agreement, he is required to use leave or report to the office when there are network issues. The Agency dismissed reprisal as a basis for the complaint, stating that requesting a reasonable accommodation did not constitute protected EEO activity. The Agency also dismissed the August 15, 2017, written counseling and the November 30, 2017, denial of Complainant’s reasonable accommodation request as discrete acts that were not timely raised to the EEO Counselor. However, the Agency accepted a hostile work environment claim for investigation that included the written counseling and the denial of the reasonable accommodation request. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that the two claims were properly dismissed for untimely EEO Counselor contact. The Agency’s final decision stated that requesting a reasonable accommodation constitutes protected EEO activity and analyzed reprisal as a basis for the complaint. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2019002736 5 CONTENTIONS ON APPEAL The instant appeal followed. Complainant did not submit a statement in support of his appeal, and the Agency did not submit a statement in response to his appeal. ANALYSIS AND FINDINGS 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. (Aug. 5, 2015) (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”). Procedural Dismissals The Agency initially dismissed reprisal as a basis for the instant EEO complaint, but the Agency’s final decision correctly noted that requesting a reasonable accommodation constitutes protected EEO activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice Number 915.004, at Example 9 (Aug. 25, 2016) citing Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings from every federal judicial circuit holding that requests for reasonable accommodation are protected activity). We agree with the Agency that the investigative record is sufficiently developed to analyze Complainant’s reprisal claims on the merits. The Agency dismissed two claims for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the complainant can establish that he was not aware of the time limit, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. 2019002736 6 We affirm the Agency’s dismissal of the August 15, 2017, written counseling as an independently actionable discrete act that was not timely raised to an EEO Counselor, and the Agency properly considered this matter as part of Complainant’s hostile work environment claim. However, we find that the Agency erred in dismissing Complainant’s reasonable accommodation claim for untimely EEO Counselor contact. The Commission has stated that, because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See EEOC Compliance Manual, “Threshold Issues,” No. 915.003, at 2-IV (July 21, 2005). As such, at the time Complainant contacted the EEO Counselor, he was alleging that the Agency remained unwilling to provide him with the accommodations he still needed. Therefore, the Agency's dismissal of the claim as untimely was improper. As such, at the time Complainant contacted the EEO Counselor, he was alleging that the Agency remained unwilling to provide him with the accommodations he still needed. Although we reverse the dismissal of this claim, we find that the record is sufficiently developed to determine whether Complainant was denied a reasonable accommodation as alleged. Reasonable Accommodation Complainant requested a reasonable accommodation for his disability. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). Complainant requested additional telework as a reasonable accommodation. The record reflects that the Agency initially accommodated Complainant by moving him to the finance section of the office in February 2017, conducting environmental testing, and cleaning the contracting section of the office. In November 2017, management asked Complainant to return to the contracting section. When Complainant’s symptoms returned upon his November 2017 return to the contracting area, the Agency moved him to the finance section, where he remained until the Contracting Service subsequently moved to a different office building. 2019002736 7 While Complainant is entitled to an effective reasonable accommodation, he is not entitled to the accommodation of his choice. Lynette B. v. Dep’t. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). In his affidavit, Complainant challenges the effectiveness of working in the finance section as an accommodation. However, Complainant’s December 4, 2017, and January 4, 2018, emails stated that he did not experience symptoms while working in the finance section. We find that the preponderance of the evidence in the record establishes that moving Complainant to the finance section was an effective reasonable accommodation and therefore find that the Agency had fulfilled its obligation under the Rehabilitation Act. Hostile Work Environment Complainant also alleged that he was subjected to a hostile work environment based on disability and reprisal. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994). There is no evident connection between Complainant’s membership in any protected class and some of the alleged harassment. Preponderant evidence in the record establishes that S1 counseled Complainant for not completing market research. With respect to the incomplete contract packages, Complainant stated that other employees were also given packages that were missing documents. S2’s March 1, 2018, email stated that she had not seen Complainant online and asked if he had submitted a leave request that she was not aware of. The preponderance of the evidence in the record establishes that S2 reminded Complainant about the telework policy in the March 12, 2018, email in response to Complainant’s comments. Other incidents of alleged harassment, such as S2 asking Complainant to return to the contract area after it had been cleaned and S2 shouting at Complainant on one occasion that his conversation was too loud are insufficiently severe or pervasive to constitute a hostile work environment. Accordingly, Complainant has not established that he was subjected to unlawful harassment. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 2019002736 8 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. 2019002736 9 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 August 12, 2020 Date