Farah S.,1 Complainant,v.C.D. Glin, President, African Development Foundation, Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120172825 (E.E.O.C. Dec. 12, 2018)

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

Farah S.,1
Complainant,

v.

C.D. Glin,
President,
African Development Foundation,
Agency.

Appeal No. 0120172825

Agency No. ADF16BC0005

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 2, 2017,
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as an Auditor, GS-0511-09, at the Agency’s
Office of the President, Office of Internal Audits in Washington, District of Columbia.

On November 22, 2016, Complainant filed a formal EEO complaint, claiming that the Agency
subjected her to a discriminatory hostile work environment based on race (African-American),
sex (female), disability (blood pressure and migraines), and in reprisal for prior protected EEO
activity when:

1. since approximately December 2015, Complainant’s supervisor has
micromanaged her and has been “territorial and possessive;”

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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2. between approximately September 12, 2016, and September 19, 2016, the Agency
failed to reasonably accommodate Complainant;

3. on November 15, 2016, the Agency did not convert Complainant to a full-time
employee.

After the investigation of the claims, 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 or a final decision within thirty days of receipt of the correspondence. Complainant
requested a final decision.

On August 2, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b).

The instant appeal followed.

ANALYSIS AND FINDINGS

Preliminary Matter: Appellate Argument Regarding Hearing Request

As an initial matter, we address Complainant’s request for hearing to appeal the Agency’s final
decision. The regulations dictate that Complainants may request an AJ hearing within 30 days of
receipt of the Report of Investigation. See 29 C.F.R. § 1614.108. The record supports that the
Agency provided Complainant a copy of the Report of Investigation on May 17, 2017 and on
May 28, 2017, Complainant requested “a final decision by the agency without a hearing before
the EEOC.” Complainant waived her right to a hearing and her hearing request on appeal is
untimely. Therefore, we find no merit to this appellate argument.

Hostile Work Environment – Claim 1

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 [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
must be determined by looking at all of 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.” Id. at 23.

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To establish a claim of harassment, 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 Service, 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). The evaluation “requires careful consideration of the
social context in which particular behavior occurs and is experienced by its target.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a
“general civility code.” Id.

In this case, the record does not support a finding that the Agency subjected Complainant to
discriminatory harassment for the reasons more fully delineated below.

Complainant’s supervisor (“S1”) (white, female, no disability) stated that Complainant never
complained of being micromanaged or controlled by S1. S1 stated that she managed
Complainant’s work by meeting with Complainant twice a week for 30 minutes to discuss
assignments, and Complainant provided S1 status updates three days a week. S1 explained that
Complainant was the only staff member assigned to her unit, that it was important that their work
was “well-coordinated,” and that Complainant’s work “requires a thorough review and additional
discussion as needed.” S1 further denied sending Complainant unnecessary emails, preventing
Complainant from working on projects with other coworkers, or monitoring individuals in
Complainant’s office.

The Information Technology Specialist (“M1”) (black, male, no disability), stated that he has
worked with S1 for six years and has known her to be “a difficult person to work with, but not . .
. a discriminating person.” M1 stated that Complainant never indicated to him that she was
being discriminated.

The then General Counsel (“General Counsel”) (African-American, female, has a disability)
stated Complainant only complained that S1 was “difficult to work with” because of S1’s
management style. The General Counsel explained that she never had the “impression that [S1]
was hostile,” and Complainant informed her that “several times that she liked [S1] personally,
but found her management style overbearing.” The General Counsel stated that she instructed
Complainant to address these issues with the then President/CEO (“President”) (African-
American, female, no disability) of the Agency who offered, during the summer of 2016, to
place Complainant in an internal detail to another supervisor. Complainant, however, rejected
this option.
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The President stated that during her tenure at the Agency, she was only aware of concerns
regarding “communication and time management differences” between Complainant and S1.
The President further stated that she recommended that S1 and Complainant meet with a
counselor to address “management problems.” The President explained that S1 was “very
particular and persistent in getting the work done, but that is often the personality trait of
auditors.”

The Human Resources Liaison (“HRL”) (African-American, female, no disability), stated that
Complainant indicated to her that S1 was “constantly harassing [Complainant].” The HRL did
not indicate that S1 “harassed” Complainant because of Complainant’s protected bases.

The record contains a copy of a final report for a September 26, 2016 intervention meeting
between Complainant and S1. The report explains Complainant’s issues with S1’s management
style and outlines recommendations for resolution of supervisor-employee conflicts.

We find that considering this claim, even if true, Complainant has not shown evidence that
considerations of race, sex, disability, or retaliatory animus motivated management’s actions
toward Complainant. We further find that the incidents Complainant alleges were not
sufficiently severe or pervasive as to constitute hostile work environment/harassment under
Commission regulation. Here, the record supports that Complainant had disagreements
regarding S1’s management style. These incidents are of a type that typically arise out of
workplace conflicts or communications. However, EEO laws are not a civility code. Rather,
they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, including
Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the
Agency discriminated against her as alleged.

Reasonable Accommodation – Claim 2

To establish that she was denied a reasonable accommodation, Complainant must show that: (1)
she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide her with a reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a
disability is an individual who can perform the essential functions of the position with or without
an accommodation.2

2 We presume for purposes of analysis and without so finding, that Complainant is a qualified
individual with a disability.
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The record reflects that Complainant emailed S1 on September 8, 2016, requesting that she be
moved to a different office because the bright lights in her current office triggered Complainant’s
migraine headaches. Complainant also attached to the email a physician’s notice indicating that
she had suffered from migraines for many years and was seeking a reasonable accommodation.
S1 immediately responded and began the process of acting on Complainant’s request.

The record also reflects that Complainant emailed S1 again on September 8, 2016 rejecting
management’s suggestion to adjust the lighting instead of moving Complainant to a different
office. Complainant then emailed S1 again on September 8, 2016 stating that “due to failed
attempts to accommodate [her] with the lighting situation in [her] office,” she was leaving work
with another migraine.

The record supports that the General Counsel emailed Complainant on September 9, 2016
requesting additional information from Complainant’s physician. That day, Complainant
provided documentation from the emergency room (ER) physician where she sought treatment
for her migraine after leaving the office the day before. The ER physician indicated that
Complainant could return to work on September 16, 2016.

The record contains a copy of a September 12, 2012 email from the General Counsel approving
Complainant’s request to move offices effective on the day Complainant returned to work.

Our review of the record indicates that the Agency acted promptly in addressing and approving
Complainant’s request and ultimately approved Complainant’s accommodation of choice. Based
on this evidence, we find that Complainant has not shown that the Agency failed to provide her a
reasonable accommodation.

Disparate Treatment (reprisal) – Claims 2 and 3

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 a complainant to prevail,
he or 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). Once the agency has
met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

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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, nondiscriminatory 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).3

The Agency articulated legitimate non-discriminatory reasons for its actions. Regarding claim 2
and as previously discussed above, the Agency did not unreasonably delay Complainant’s
reasonable accommodation request. Complainant requested a reasonable accommodation on
September 8, 2016 and the Agency confirmed this request on September 12, 2016. We further
note that the Agency approved Complainant’s request effective upon her return to the office
which was determined, per Complainant’s ER physician’s note, to be no earlier than September
16, 2016.

Regarding claim 3, S1 stated that Complainant was hired as an auditor through the Pathways
Recent Graduate Program. S1 explained that as a Pathways participant, Complainant was hired
under a two-year term appointment Not to Exceed (NTE) November 15, 2017. S1 stated that
Complainant began the Pathways program on November 15, 2015 and by November 15, 2016,
Complainant had only completed one year of her two-year term appointment. S1 explained that
Pathways participants may be considered for noncompetitive conversion to a career job in the
competitive service after they complete their two-year term.

The record contains a copy of Complainant’s Recent Graduates Program Participant Agreement
indicating that she began the program on November 15, 2015 with a NTE date of November 15,
2017.

The record includes a copy of the job announcement for the Pathways auditor positon. Under the
Conditions of Employment section, the announcement states

[a]ppointment under the Recent Graduates Program may not exceed two years.
Appointees may [emphasis added] be non-competitively converted to the
competitive service after successful completion of at least one year of continuous
service, in addition to all of the requirements of the Recent Graduates Program.

3 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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Thus, the Agency could, but was not required, to convert Complainant after she completed one
year of service. Because Complainant’s appointment could not exceed two years, the Agency
was only required to make a conversion determination by the end of Complainant’s two-year
term appointment.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful
discrimination based on reprisal for prior protected EEO activity.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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

December 12, 2018
Date