January B.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

May 3, 2018

0120161616 (E.E.O.C. May. 3, 2018)

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

January B.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120161616

Agency No. DOL-13-04-115

DECISION

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 March 16, 2016, final
decision 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. 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 term employee in a
Paralegal Specialist, GS-0950-12, position at the Agency’s facility in Atlanta, Georgia. On July
15, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her,
and subjected her to a hostile work environment, on the bases of her disability (Crohn’s disease),
age (44), and in reprisal for prior protected EEO activity when:

1. from mid-September 2010 through September 2011, management did not provide
her with an office or substantive work;

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. on July 2, 2012, her supervisor (S1) told her that she could not telework when she
had a medical issue and that she should instead use sick leave or intermittent Family
and Medical Leave Act (FMLA) leave;
3. on December 13, 2012, management reprimanded her for taking her work computer
home;
4. on December 18-19, 2012, S1 told her to turn in her air-card used for teleworking,
and berated her when she said she didn’t have the air-card with her;
5. on December 20, 2012, S1 took Complainant’s air-card;
6. on May 29, 2013, the position of Docket Clerk, GS-13-ATL-303aCW, for which
Complainant had applied, was cancelled after she informed management that she
had applied for the position.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision dismissed claims (1) - (5) for untimely EEO counselor
contact. The decision also found that, with respect to claim (6), Complainant failed to prove that
the Agency subjected her to discrimination as alleged. Finally, the decision found that Complainant
failed to show that she was subjected to a hostile work environment. On appeal, Complainant states
that she has withdrawn claim (1). Complainant also claims that the statements of management
officials lack credibility, and reiterates her contention that she was subjected to unlawful
harassment and discrimination.

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”).

Initially, we concur with the Agency’s dismissal of claims (3) - (5), 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. Here, Complainant did not contact an EEO counselor until May 30,
2013, which she acknowledges was more than 45 days after the actions alleged in claims (3) - (5).
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As such, we affirm the dismissal of these claims for untimely EEO Counselor contact. We also
find, however, that these untimely discrete acts will be used as background evidence in support of
Complainant’s claim that she was subjected to a hostile work environment.

With respect to claim (2), to the extent Complainant is alleging that she was denied a reasonable
accommodation, for the purpose of timeliness, the Commission has held that the denial of
reasonable accommodation constitutes a recurring violation that repeats each time the
accommodation is needed. See Complainant v. Office of Personnel Management, EEOC Request
No. 05980365 (Nov. 4, 1999). Under the Commission’s regulations, an agency is required to make
reasonable accommodations to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that accommodation would cause
an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that
Complainant is a qualified individual with a disability.

Here, the record shows that on July 2, 2012, Complainant was suffering from a flare-up of her
condition and left the facility, intending to telework for the remainder of the day. S1 informed
Complainant that she could not telework when she was ill, but instead had to request either sick
leave or intermittent leave under FMLA. S1 instructed Complainant to contact the Office of the
Assistant Secretary for Administration Management to discuss her options, at which point
Complainant was informed of the Agency’s reasonable accommodation procedures. The record
shows that Complainant requested a reasonable accommodation and that on August 2, 2012, the
Agency crafted a telework agreement for her which would allow Complainant to telework on an
ad hoc basis with supervisory approval. We find that Complainant has not shown that any other
employees were permitted to telework in lieu of taking sick leave; nor has she shown that, once
she requested a reasonable accommodation, the Agency failed to provide her with one. Even if we
assume for the sake of argument that claim (2) was timely raised, we find that the Agency has not
violated the Rehabilitation Act with respect to claim (2).

As to claim (6), to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. 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 pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of age,
disability, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. The record shows that Complainant was hired in
September 2010, as one of approximately 26 term positions assigned to address the backlog of
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Mine Safety and Health Act litigation (the Backlog Project). On or about March 1, 2013, a
government-wide budget sequestration went into effect and the Agency determined that the
number of employees assigned to the Backlog Project needed to be reduced. As a result, the
Agency decided not to extend the terms of the employees assigned to the Atlanta Backlog Project,
and that the majority of these employees, including Complainant, had not-to-exceed dates of June
1, 2013. The record shows that in April 2013, a job announcement for a vacant docket clerk
position was posted, and Complainant applied for the position. The Agency states that the vacancy
announcement was cancelled, however, because it was determined that the Atlanta Office would
not have the budget to fill the position at issue until the expiration of the appointment of the final
Backlog Project employee on September 13, 2013. The record shows that when that final
employee’s term ended, the position was re-announced. We find that Complainant has not shown
that the Agency’s articulated reasons for canceling the vacancy announcement were pretextual, or
motivated by discriminatory or retaliatory animus.

Finally, we find that Complainant has not established a claim of harassment. Complainant has not
provided evidence which indicates that she was subject to conduct which had the purpose or effect
of unreasonably interfering with her work performance, and/or created an intimidating hostile, or
offensive work environment. Moreover, we find that under the standards set forth in Harris v.
Forklift Systems. Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by the Agency were motivated
by discriminatory animus. See Complainant v. United States Postal Service, EEOC Anneal No
01982923 (Sept. 21,2000).

CONCLUSION

The Agency’s final decision is AFFIRMED.

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
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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.

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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

May 3, 2018
Date