Lana G.,1 Complainant,v.Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 24, 2018

0120150494 (E.E.O.C. Jan. 24, 2018)

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

Lana G.,1
Complainant,

v.

Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120150494

Hearing No. 410-2014-00049X

Agency Nos. ARGORDON12AUG03401,
ARGORDON13NOV03952

DECISION

On November 12, 2014, 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
October 10, 2014, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this matter, Complainant worked as an Instructional Systems
Specialist, GS-1750-12, at Fort Gordon in Georgia. On October 25, 2012, Complainant filed an
EEO complaint (Agency No. ARGORDON12AUG03401) alleging (as later amended) that the
Agency discriminated against her on the bases of race (African-American), sex (female), and in
reprisal for prior protected EEO activity when:

1. her training was both postponed and canceled, setting her up for failure;

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. the emails of her supervisor (S1) had a negative tone and he did not respond to
her emails;
3. on or around July 2, 2012, her Lead Training Specialist directed her to move her
desk area;
4. S1 called a meeting of all the GS-12s he supervised in mid-July 2012, but did not
include Complainant in the meeting;
5. S1 only communicated with her through her Lead Training Specialist, and her
Lead Training Specialist was directed to report when she arrived each day, when
she left the office during the day, and all other departures;
6. beginning on August 6, 2012, all emails that she sent had to go through her Lead
Training Specialist to S1;
7. on or around August 6, 2012, her Lead Training Specialist told S1 that she (the
Lead Training Specialist) had tasked an employee other than Complainant to
provide personnel lists;
8. on August 23, 2012, a meeting was scheduled at the last minute at 8:30 a.m., but
she had previously scheduled a meeting at the same time, and S1 asked her for
documentation showing where she scheduled her meeting prior to learning of his
meeting;
9. on/around September 8 or 9, 2012, her Lead Training Specialist yelled at her;
10. on October 11, 2012, S1 made it difficult for her request for advance sick leave to
be approved, resulting in her being charged with Leave Without Pay (LWOP);
11. on November 1, 2012, she received a formal counseling from her new supervisor
(S2) that detailed concern for her leave usage, leave balance, and being tardy for
work;
12. on January 25, 2013, S2 refused to certify her time and attendance, stating that
she did not make corrections related to being tardy;
13. S2 issued her Memorandums For Record dated February 11, 12, and 13, 2013,
and March 6 and 7, 2013, notifying her of being charged Absent Without Leave
(AWOL); and
14. S2 counseled her in writing on April 5, 2013 for being AWOL on March 26,
2013, and April 1, 2, and 4, 2013.

On January 3, 2014, Complainant filed a second EEO complaint (Agency No.
ARGORDON13NOV03952) alleging (as later amended) that Complainant was discriminated
against based on race (African-American), age (51), disability (rheumatoid arthritis), and reprisal
when she was subjected to Agency actions resulting in a hostile work environment, including:

1. on numerous occasions her supervisor (S2) issued Complainant a Performance
Appraisal rating her as “Unsuccessful;”
2. on November 4, 2013, S2 demanded additional information from her physician
regarding her medical condition;
3. on October 29, 2013, Complainant received a Notice of Suspension with two days
unpaid leave, effective October 30, 2013;
4. on October 18, 2013, Complainant was charged with AWOL;
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5. on October 2013, S2 issued Complainant a counseling statement for
insubordination;
6. on October 16, 2013, Complainant called S2 to inform her that Complainant
needed to take her car to be serviced. S2 requested that she turn in a Maintenance
Report and requested the length of time the appointment took for the car to be
serviced;
7. on September 15, 2013, Complainant was denied the opportunity to attend
training;
8. on September 13, 2013, Complainant received a Notice of Proposed Suspension;
9. in November 2012, Complainant was moved into a smaller office in order to
allow another employee to move into her larger office;
10. on unknown dates, S2 yelled and cursed at Complainant;
11. on unknown dates, S2 discredited Complainant’s work by causing her to feel
bullied; and
12. Complainant was charged AWOL while she was approved for leave under the
Family Medical Leave Act (FMLA) for the following dates: January 17, 22, 24,
2014.

The Agency investigated the complaints. At the conclusion of the investigation of her first
complaint, the Agency provided Complainant with a copy of the report of investigation (ROI-1)
and notice of her right to request a hearing before a Commission Administrative Judge (AJ).
Complainant timely requested a hearing. While her hearing request was pending for her first
complaint, Complainant filed the second complaint. The Agency conducted an investigation and
produced a report of investigation (ROI-2). The Agency notified the AJ of the second complaint
and requested that the AJ consolidate the 2 complaints. The AJ held a hearing on both
complaints on August 21, 2014, and issued a decision on September 16, 2014. 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.2

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

2 Complainant was later removed from her position for excessive unexcused absences, effective
March 21, 2014. Complainant appealed the removal to the Merit Systems Protection Board
(MSPB), which issued an initial decision in Complainant’s favor on December 12, 2014,
ordering her restoration to employment. MSPB Docket No. AT-0752-14-0589-I-1.
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Harassment

It is well-settled that harassment based on an individual’s statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish
a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected
classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to
her membership in those classes or her prior EEO activity; (3) the harassment complained of was
based on those classes or that activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance 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).

Here, the AJ found that the evidence did not establish that any of Agency’s allegedly harassing
actions were based on any of her protected classes. AJ Decision at 16. From our review, we
conclude that this finding is based on substantial evidence. Neither in her hearing testimony nor
in other materials submitted in the course of the investigation did Complainant adduce evidence
that the Agency’s actions were motivated by discriminatory animus.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

The AJ found, with respect to each claim of disparate treatment discrimination that the Agency
had provided a legitimate, nondiscriminatory reason for its actions and that Complainant had
failed to adduce any evidence that those reasons were pretexts designed to conceal
discriminatory animus. For example, the Agency explained that Complainant was denied
advanced sick leave because she had not provided the necessary medical documentation.
Complainant failed to adduce evidence that this was a pretext designed to conceal discriminatory
animus. ROI-1 at 451-452. Our review of the record, including the testimony of witnesses at the
hearing, demonstrates that the AJ’s findings are supported by substantial evidence.

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Failure to Provide Reasonable Accommodation

Complainant argues on appeal that the Agency’s efforts to require Complainant to report to work
on time, which resulted in discipline being imposed on several occasions, were improper because
the Agency should have allowed Complainant to report to work late as a reasonable
accommodation of Complainant’s disabling condition, rheumatoid arthritis. The AJ correctly
found that the Agency was not liable for denying Complainant’s requested reasonable
accommodation because, inter alia, Complainant failed to identify the type of accommodation
she required and to timely “respond to the Agency’s request for medical documentation.” AJ
Decision at 18. The AJ also found that Complainant’s testimony at hearing that she notified S2
in November 2012, when S2 became her direct supervisor, of her medical condition and need for
a flexible start time was inconsistent and not credible. The AJ found that Complainant had not
supported her claim that she had requested a reasonable accommodation with any documentation
to that effect, and her testimony on when exactly she did request an accommodation was
inconsistent, despite his finding that Complainant took “copious notes” and “sent numerous
emails regarding all manner of conversations and meetings with Agency officials” on other
issues.

Complainant admits that she never requested a flexible schedule as a reasonable accommodation
for her disability. ROI-2 at 649. The record evidence shows that the Agency requested
Complainant to submit medical evidence to substantiate her claimed disability and identify the
type of reasonable accommodation she required. In August 2013, Complainant submitted a
doctor’s letter which did not identify any accommodation she required but suggested that
Complainant’s arthritis might render her unable to “make it to work” at “times.” The AJ found
that this “vague, blanket statement” that Complainant may be unable to “make it to work” to be
insufficient to require the Agency to allow Complainant to arrive at work in the morning at a
“permanently undefined hour.” He further found that it would be an undue hardship on the
Agency to permit that flexibility, given Complainant’s job duties.

Where, as here, a need for reasonable accommodation is not obvious, and the individual fails to
provide reasonable documentation requested by the employer, the employer will not be held
liable for failure to provide the requested accommodation. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915,002, Question 6 (rev. Oct. 17, 2002).3

3 In her appeal statement, Complainant refers repeatedly to the MSPB initial decision in the
appeal she filed challenging her removal. See, supra, footnote 2. Any suggestion by
Complainant that we should reverse the decision of the EEOC AJ now before us because the
MSPB AJ reached an inconsistent conclusion is without merit. The AJ decision on appeal is
based on a full evidentiary record, including a hearing, and was rendered prior to the MSPB
decision. The principle question before us, which we have answered in the affirmative, is
whether the AJ’s findings are supported by substantial evidence. The fact that a different factual
conclusion was later reached by another finder of fact in a different forum does not alter that
analysis.
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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 fully implementing the AJ’s
finding that Complainant failed to prove she was discriminated against.

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,
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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

January 24, 2018
Date