Hallie M.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Dec 20, 2019

0120182517 (E.E.O.C. Dec. 20, 2019)

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

Hallie M.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120182517

Hearing No. 480-2013-00374X

Agency No. 2012-24546-FMCSA-06

DECISION

On July 12, 2018, 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 14, 2018, final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq., 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are whether the Administrative Judge (AJ) properly granted the Agency’s
Motion for Summary Judgment and whether the preponderance of the evidence in the record
establishes that Complainant was subjected to a hostile work environment based on sex, age, or
disability.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Border Inspector,
GS-09, at the Agency’s Federal Motor Carrier Safety Administration (FMCSA) in Calexico,
California.

In November 2008, a coworker gave Complainant an Agency-provided jacket. Complainant’s
first-line supervisor (S1) asked Complainant to remove it and leave it in his office because the
jacket lacked an Agency logo. S1 stated that he would order a new jacket for Complainant.
Approximately one week later, Complainant witnessed a Border Inspector (BI) with an identical
jacket and BI confirmed that he regularly wore a jacket without an Agency logo. S1 provided
Complainant with a new jacket a few days later.

In May 2009, Complainant asked S1 for help with completing her first assigned case. S1 gave
Complainant a template from a completed case and asked another Border Inspector to help
Complainant.

On July 9, 2009, S1 requested that Complainant change her cell phone number to a local number.
S1 explained that he made the request because calling a long-distance number caused the Agency
to incur additional charges. S1 added that Complainant’s phone frequently dropped calls when he
called her.

On October 5, 2009, Complainant asked S1 if she could use her own vehicle rather than a
government-owned vehicle (GOV) for work-related travel. S1 denied the request because a GOV
was available for the trip, and S1 typically required the employees he supervised to use a GOV
when available. Also, several employees were travelling for the same assignment, and S1 thought
it would be beneficial for the employees to travel together.

On April 6, 2010, S1 met with Complainant to discuss her mid-point progress review. S1 indicated
that Complainant’s performance was at the “Achieved Results” level, which was the third out of
five rating levels. Complainant asked how she could improve her performance. S1 noted that
Complainant had been excessively tardy and that she should focus on improving her attendance.
S1 wrote on Complainant’s performance appraisal, “will try to be on time to work (barring baby
getting sick).”

On June 8, 2010, S1, Complainant, and other employees were travelling in a GOV for work-related
travel. S1 was driving and he received a ticket for speeding. S1 stated to Complainant’s coworkers
that Complainant had also been issued a speeding ticket and asked how to sign up for traffic school.

On June 11, 2010, S1, Complainant, and other employees were travelling in a GOV for work-
related travel. S1 was driving and Complainant asked S1 to find a place to stop, so she could use
the restroom. S1 did not stop right away because he waited to hear whether anyone else wanted
to stop. Complainant asked twice more. After the third request, S1 asked the other employees if
they needed to stop and they both said that they did. S1 then stopped at a gas station.
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On August 26, 2010, Complainant asked S1 why he had not answered her phone calls or responded
to her emails. S1 replied that he had been busy and that calling her long-distance phone number
incurred extra costs to the Agency.

In or around the first week of February 2011, Complainant asked S1 for leave on Saturday,
February 19, 2011. S1 indicated that he would have to find someone who would be willing to
switch days with Complainant. S1 warned Complainant that he could not make any promises
because no one wanted to work on Saturdays. S1 advised Complainant to ask her coworkers if
they would be willing to switch with her. Complainant did so, but no one agreed to switch.

On April 14, 2011, Complainant asked S1 if he would approve her request for a Compressed Work
Schedule. S1’s notes reflected that during the period February 23 through April 11, 2011,
Complainant reported late for duty a total of 10 times. S1 told Complainant that if she avoided
any additional tardiness for a three-month period, he would approve her request. On May 18,
2011, Complainant submitted a written request to change her Compressed Work Schedule, which
S1 approved the next day.

On June 7, 2011, Complainant requested that S1 issue her a specific GOV and specific equipment
for work-related travel. S1 refused because the equipment was not necessary for the assignment
and a smaller GOV was adequate.

On June 10, 2011, Complainant was travelling with a coworker. S1 had previously provided the
coworker with the name and address of the hotel where the coworker and Complainant both had
reservations. The coworker lost the information. Sometime later, Complainant called S1 and
asked him to locate and provide the reservation information to Complainant. S1 replied that he
was not in the office and did not have access to that information. S1 suggested that Complainant
call someone else for assistance.

On or about July 10, 2011, Complainant submitted a travel voucher to S1 for work-related training.
The voucher included a charge of 50 cents for a personal phone call. S1 refused to approve the
voucher until Complainant removed the phone call charge because personal phone calls were not
an authorized expenditure. Complainant stated that a coworker attended the same training but
stayed at a different hotel. Complainant stated that her coworker’s voucher included a charge of
$75.00 for taxes at his hotel. S1 approved the coworker’s voucher without asking him to make
any changes because hotel tax charges were an authorized expenditure.

S1 scheduled Complainant to work every Saturday in December 2011. On September 27, 2011
and November 26, 2011, Complainant asked S1 to revise her schedule so that she did not have to
work any Saturdays. During the first week of December, S1 revised Complainant’s schedule.
Complainant was required to work on Saturday, December 3, 2011, but was not scheduled to work
any of the remaining Saturdays.

On December 1, 2011, Complainant requested that S1 permanently change her regular work hours,
which were 12:30 p.m. to 9:00 p.m., to 9:30 a.m. to 6:00 p.m. for childcare reasons.
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S1 refused because the shift was not a regularly-assigned shift for any employee. On rare
occasions, employees would be assigned to work 9:30 a.m. to 6:00 p.m. for holidays,
appointments, and when the Agency had to coordinate its operations with other federal agencies,
or similar circumstances.

On February 7, 2012, Complainant and several of her coworkers were attending an office event in
the lunchroom. Complainant approached the table and began to sit in a chair. However, the chair
moved as she was sitting. Complainant fell to the floor, causing injuries to her neck, left shoulder,
lower back, and knee. Complainant did not witness what caused her chair to move. After she fell,
she saw an Auditor Supervisor (AS) standing behind her and looking at her with concern. He
asked Complainant if she were okay. Complainant heard some employees laugh, which caused
her to feel embarrassed. Complainant “jokingly” replied “yes” to AS to avoid further
embarrassment. A coworker (CW1) shouted to Complainant, “well, if AS wouldn’t have moved
the chair away from you, you would not have fallen.” AS shouted back at CW1, “no, no, no.
Don’t you ever be saying these things.”

Several hours later, Complainant felt sharp pains with swelling and stiffness in her neck, left
shoulder, lower back, and left knee. Complainant called S1, who was not present when she fell,
to inform him of her condition and need for medical attention. Complainant then called CW1 and
asked if he had really seen AS move her chair as she was sitting. CW1 said that he had only been
joking and that AS had not even been standing behind Complainant.

On February 14, 2012, Complainant told S1 that she wanted to proceed with a formal complaint
against AS and asked S1 to investigate. S1 agreed to investigate. After speaking to Complainant,
S1 discussed the issue with the Border Supervisor and agreed that the Border Supervisor would do
the investigation. From February 14 through February 22, 2012, the Border Supervisor collected
written statements from seven employees who had been present at the time Complainant fell,
including AS and CW1. AS denied moving Complainant’s chair and none of the employees saw
AS or anyone else move the chair. CW1 admitted that he had asked AS why AS had pulled
Complainant’s chair. However, CW1 also stated that he had been joking and that AS had not
pulled Complainant’s chair.

On February 24, 2012, a Worker’s Compensation Claim Consultant called Complainant to inform
her that S1 had not provided necessary medical leave documents to verify Complainant’s medical
leave status. Complainant arranged for a staff person from her medical provider’s office to provide
the necessary documents to the consultant. S1 stated that he was unaware that he was responsible
for providing documentation for Complainant’s claim. S1 further stated that on a prior occasion,
a different employee who had applied for worker’s compensation benefits had provided the
necessary documentation to the consultant. A male witness testified that in 2011, he applied for
worker’s compensation benefits and had no trouble with documentation.

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On March 1, 2012, the Border Supervisor told Complainant that several staff members had been
interviewed regarding Complainant’s fall, and all denied seeing AS or anyone else move
Complainant’s chair. Complainant requested the forms to file a grievance against AS and the
Border Supervisor provided Complainant with the forms the next day.

On or about June 5, 2012, Complainant asked S1 to assign her to a detail operation that was
scheduled to take place at Yosemite National Park during the week of June 13, 2012. S1 denied
her request because he had already selected the employees for that assignment.

On August 2, 2012, Complainant submitted a written request to S1 asking that the Agency install
an air-conditioned trailer for her use while conducting inspections at a port facility operated by the
Customs and Border Protection Agency. The letter stated that the extreme weather conditions at
the port facility constituted a health hazard and that Complainant needed the trailer in order to
“maintain a safe environment.” The letter further stated, “I am informing you in advance that a
doctor’s order will not be necessary.” S1 asked Complainant to submit a note from her doctor
regarding her inability to work in hot weather. Complainant did not submit any further
documentation and was not assigned to work at the port facility.

On August 7, 2012, S1 instructed Complainant to enroll in a training class. Complainant asked S1
to send the information Complainant would need to enroll. S1 also instructed Complainant to
complete enrollment before leaving the office to go to her assigned duty at a different location. S1
subsequently saw Complainant preparing to leave the office and asked her if she had completed
the enrollment. Complainant replied that she would enroll after she had a chance to review her
emails. Complainant left the office without completing the enrollment. Complainant was enrolled
in the course on or about August 14, 2012.

On August 8, 2012, S1 sent an email to his staff, including Complainant, notifying them of their
work schedules for the following week. Complainant was scheduled to work from 9:30 a.m. to
6:00 p.m. Her usual schedule was 12:30 p.m. to 9:00 p.m. S1 changed her schedule for that week
because there were several special operations scheduled that required adjustment of the schedules.

In September 2012, Complainant requested that she be assigned to a special detail at Yosemite
National Park on September 5, 2012. S1 denied the request because Complainant had stated that
she only wanted to communicate with him via email. He also denied the request due to
Complainant’s conduct regarding refusal to comply with instructions on August 7, 2012. On
October 3, 2012, S1 issued a Letter of Reprimand to Complainant for failing to follow his
instructions on August 7, 2012.

EEO Complaint

On June 3, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her by subjecting her to a hostile work environment on the bases of sex (female), disability
(mental and physical), and age (DOB: 1971) when:

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1. In November 2008, Complainant’s supervisor instructed her not to wear a particular
jacket;

2. In May 2009, Complainant’s supervisor failed to provide her with help on her first
case;

3. On July 9, 2009, Complainant’s supervisor instructed her to change her cell phone
number;

4. On October 5, 2009, Complainant’s supervisor denied her request to use her
personal vehicle for work-related travel;

5. In February 2010, Complainant’s supervisor denied her request that she not be
scheduled to work on February 20, 2010;

6. In April 2010, Complainant received an unfavorable evaluation;

7. In May 2010, Complainant’s supervisor denied her request for a Compressed Work
Schedule;

8. On June 8, 2010, Complainant’s supervisor divulged to her coworkers that
Complainant had been issued a speeding ticket;

9. On June 11, 2010, Complainant’s supervisor refused to stop to allow Complainant
to use a restroom;

10. On August 30, 2010, Complainant’s supervisor failed to respond to Complainant’s
emails or telephone calls;

11. On June 7, 2011, Complainant’s supervisor denied Complainant’s request that she
be permitted to use a specific truck and other equipment for work-related travel;

12. On June 10, 2011, Complainant’s supervisor failed to assist her in obtaining the
address of her hotel;

13. On July 10, 2011, Complainant’s supervisor instructed her to remove a fifty-cent
fee from her travel expense voucher;

14. On September 27, 2011, Complainant’s supervisor denied her request that she not
be scheduled to work on Saturdays during the month of December 2011;

15. On December 1, 2011, Complainant’s supervisor denied her request to change her
work schedule to a 9:30 a.m. to 6:00 p.m. shift;

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16. On February 7, 2012, a coworker pulled Complainant’s chair from under her as she
was attempting to sit, causing her to fall and injure herself;

17. In February 2012, Complainant’s supervisor delayed providing her with grievance
forms;

18. On February 24, 2012, Complainant learned that her supervisor had not been
providing documents necessary for her worker’s compensation claim;

19. In June and September 2012, Complainant’s supervisor denied her request to be
assigned to a special detail at Yosemite National Park;

20. In August 2012, Complainant’s supervisor denied her request for a reasonable
accommodation;

21. On August 8, 2012, Complainant’s supervisor changed her work schedule without
advance notice; and

22. On October 3, 2012, Complainant received a Letter of Reprimand.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object, the
AJ assigned to the case granted the Agency’s September 23, 2013, motion for a decision without
a hearing and issued a decision without a hearing on May 8, 2018. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

The AJ determined that there was insufficient evidence in the record to establish that there was a
genuine material dispute and/or that credibility determinations necessitated a hearing. The AJ
noted that, with respect to claims (16) and (20), Complainant failed to identify evidence indicative
of unlawful harassment. Complainant admitted that she did not see AS or anyone else move her
chair. Complainant accused AS based on the comment of an individual who confirmed he was
joking, and seven witnesses denied seeing someone move Complainant’s chair. Regarding
Complainant’s reasonable accommodation allegation, Complainant never provided medical
documentation to support her request and management officials never assigned her to the port.
The AJ determined that a reasonable trier of fact would be unable to conclude that AS moved
Complainant’s chair or that her reasonable accommodation request was denied as alleged.

Regarding Complainant’s remaining claims, the AJ found that only claims (1) and (18) could be
linked to Complainant’s sex. However, Complainant did not allege, and there was no evidence in
the record, that S1 issued any written or verbal policy, made any statement, or engaged in any
conduct that demonstrated bias against Complainant based on her sex.
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Moreover, the jacket and worker’s compensation incidents were insufficiently severe to interfere
with Complainant’s work performance. The AJ determined that these incidents were insufficiently
severe or pervasive to establish a hostile work environment, and that the remaining claims bore no
indicia of bias based on sex.

With respect to age discrimination, the AJ noted that Complainant did not identify evidence linking
the alleged acts of harassment to alleged comments that Complainant was getting old and should
marry before she became too old to find a partner. Complainant further failed to identify evidence
of a similarly situated employee who was substantially younger than Complainant and accorded
more favorable treatment with respect to claims (19) through (22).

Regarding disability discrimination, the AJ found that complainant failed to identify evidence
establishing that she was a qualified individual with a disability when she submitted her request
for an air-conditioned trailer. Moreover, Complainant’s physician released her back to work
without medical restrictions, Complainant’s letter never indicated that the requested trailer would
address a medical condition, and Complainant was never required to experience the allegedly
adverse employment condition of working at the port.

As for reprisal, the AJ highlighted the temporal gap between S1 learning of Complainant’s
protected activity and the alleged adverse employment actions alleged in claims (19) through (22).
The AJ further determined that the Agency provided legitimate, nondiscriminatory reasons for its
actions in each of the claims and there was insufficient evidence to conclude that any of the
proffered reasons were pretext for retaliation.

CONTENTIONS ON APPEAL

The parties did not provide any arguments on appeal.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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,
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and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant does not
assert, on appeal, any facts that are in dispute, nor does Complainant address the merits of the AJ’s
decision. We find that the AJ correctly determined that there are no genuine issues of material fact
or credibility that merited a hearing. Therefore, the issuance of a decision without a hearing was
appropriate.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive.
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Complainant must also prove that the conduct was taken because of her protected classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of Agency
liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a legally
hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it
forbids “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming
that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
the Commission finds that Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus.

Many of Complainant’s harassment allegations can generally be described as relating to
managerial decisions, such as adherence to Agency dress code provisions, case assistance, use of
personal and GOV vehicles, evaluations, travel expenses and planning, work schedules, and
interactions with S1. Agencies generally have broad discretion to carry out personnel decisions
and exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec.
6, 1996). S1’s testimony indicates that he provided Complainant with case assistance to the extent
that she asked and requested that an Inspector provide Complainant with a copy of a case to see
necessary actions. ROI, at 257. S1 denied ordering Complainant to change her telephone number,
noting that he asked her about the change because he had difficulty contacting Complainant. Id.
at 257-258. As for the use of personal or GOV vehicles and schedule changes, approval was at
S1’s discretion and his explanations were consistent with business needs. Id. at 258-260, 263-265,
275, 283. With respect to Complainant’s allegations that S1 acted inappropriately regarding
Complainant’s request to use the restroom and poor communication with Complainant, S1 denied
recollection of the events occurring as alleged. Id. at 261-262. Moreover, at least one witness
indicated that S1’s failure to communicate extended to everyone. Id. at 315.

Regarding Complainant’s allegation that she received an unfavorable evaluation, S1 asserted that
Complainant did not receive an unfavorable evaluation. ROI, at 259-260. Rather, S1 stated that
during Complainant’s mid-point progress review, he mentioned Complainant’s tardiness and noted
the discussion in the remarks of the evaluation. Id. S1 stressed that the remarks did not affect
Complainant’s performance rating and she received a rating of “Achieved Results.” Id.

As for the chair incident, the Border Supervisor testified that S1 requested an investigation after
speaking with Complainant about the incident. ROI, at 284. Multiple witness statements obtained
during the investigation and included in the record fail to support Complainant’s contentions. Id.
at 293, 320-321, 323, 326. Regarding the grievance package, the Border Supervisor affirmed that
she forwarded the information to Complainant after consulting with the Administrative Office and
Employee and Labor Relations. Id. at 284.

With respect to the Letter of Reprimand, management officials testified that Complainant received
the reprimand for failure to enroll in a course as instructed by S1. ROI, at 278-279, 285.
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S1 averred that Complainant requested instructions via email; failed to communicate outside of
email; and did not respond until three days later. Id. S1 added that it was Complainant’s second
time displaying insubordination to a supervisor. Id.

We do not find that Complainant has shown that she was subjected to a hostile work environment
based on her protected classes or in reprisal for protected activity. We find that the complained of
conduct did not have the purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment. In looking at the evidence
in the record, male witnesses indicated that they had no issues with processing their Worker’s
Compensation documents, used personal vehicles, wore jackets without logos, and worked the
9:30 a.m. to 6:00 p.m. shift. ROI, at 306, 309, 314. Even crediting these witness statements, we
do not find that all the incidents, taken together, rise to the level of severe or pervasive harassment.
Accordingly, we agree with the AJ that Complainant has not shown that she was subjected to a
discriminatory or retaliatory hostile work environment.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record, we agree with the AJ that even if we assume, arguendo,
that Complainant established a prima facie case of discrimination, the Agency articulated
legitimate, nondiscriminatory reasons for its actions and Complainant did not show that the reasons
were pretext for discrimination.

Reasonable Accommodation

In order to establish that Complainant was denied a reasonable accommodation, Complainant must
show that: (1) she is an individual with a disability; (2) she is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation. EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with
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Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable
Accommodation). “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). 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).
Assuming that Complainant is a qualified individual with a disability, we find that the Agency did
not fail to provide her with a reasonable accommodation of an installed air conditioner at a
Customs and Border Patrol facility for conducting motor coach inspections. Complainant
acknowledged that S1 requested medical documentation to support her request and she informed
S1 that she would not provide medical documentation. ROI, at 172. S1 stressed that the only
medical documentation he received from Complainant indicated that Complainant could return to
her full duties in May 2012. Id. at 273. However, Complainant never worked at the port. Id. at
273-274. We find that the Agency’s request for medical documentation was appropriate and
necessary to evaluate Complainant’s need for reasonable accommodation. Moreover, the
undisputed evidence shows that management officials never assigned Complainant to the port
facility. Therefore, we find that the Agency did not discriminate against Complainant based on
her disability because it did not fail to provide her with a reasonable accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order, because the AJ’s issuance of
a decision without a hearing was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision.
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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.

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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 20, 2019
Date