U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leanne H.,1
Complainant,
v.
Herbert H. Jackson, Jr.
Acting Director,
United States Government Publishing Office,
Agency
Appeal No. 0120181686
Hearing No. 570-2015-00666X
Agency No. GPO1330
DECISION
On April 26, 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
April 18, 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., 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 order.
ISSUES PRESENTED
Whether Complainant established that she was discriminated against based on race (African-
American), sex (female), disability (Anxiety/Panic Disorder and Chronic Fatigue Syndrome), and
reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section
501 of the Rehabilitation Act of 1973 with regard to five (5) Agency actions for which she alleges
discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Printing Services
Specialist, GS-12 at the Agency’s Digital Print Center facility in Washington, DC.
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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On July 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), disability (Anxiety/Panic
Disorder and Chronic Fatigue Syndrome), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964, and Section 501 of the Rehabilitation Act of 1973 when the
following actions took place:
Parking Removal
In November 2012, Complainant’s parking spot was removed from Lot 50. The Agency stated
that, on September 19, 2011, the Agency’s Chief of Staff informed managers that Alternate Work
Schedules (AWS) were terminated for all Agency managers due to a reduction in the headcount.
Upon learning of this information, Complainant indicated that she would adjust her core duty hours
to 7:30 a.m. to 4:00 p.m. She, however, “noted” that she came in regularly throughout the three
shifts. On January 12, 2012, Complainant was issued an assignment to Lot 50. On February 23,
2012, the new Parking Program Directive was issued setting forth the revised rules for the parking
program. All parking program participants were required to resubmit applications for the program.
Once the applications were completed and submitted, each employee’s supervisor and managing
director had to certify their “regular duty hours” on the application.
Complainant submitted her parking application form on or about August 27, 2012. On or about
September 13, 2012, her supervisor changed her application form, by setting her “regular duty
hours as 7:30 a.m. to 4:00 p.m., and “whited out” Complainant’s annotation that stated, “varies
work hours for three different shifts.” The same application form contained a handwritten note at
the bottom stating that, “This applicant lied on her duty hours and her (Supervisor) wrote the
correct time(s) on this form.” Complainant’s lot assignment was changed from Lot 50 to Lot 55.
The record indicates that numerous Agency employees, including Complainant, received new lot
assignments.
The record indicates that, due to medical reasons, Complainant was out of the office on leave and
restricted duty from November 2012 until April 22, 2013. Upon her return to work, she provided
the Agency medical documentation supporting her need for disability parking. The Agency
complied with the request, and she was reassigned to Lot 3. The record indicates that Lot 3 was
closer to her work station.
Request for Restored Annual Leave Denied
On or about December 14, 2012, Complainant requested that ninety-five (95) hours of annual leave
be restored. The Agency’s policy required “use or lose” leave requests be submitted on or before
December 2, 2012. When asked to provide substantiation with the policy, Complainant submitted
a letter in which she stated that she had prepared the required OPM Form 71 “a couple of days
before November 8, 2012 and placed it in her desk.” She further stated that she was unable to
submit it or schedule leave in “WebTa” before going out on sick leave on or around November 8,
2012. The Agency denied her request, however, based on the request being untimely.
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Request for Advance Sick Leave Denied
On February 27, 2013, Complainant contacted her supervisor regarding her request for 240 hours
of advanced sick leave. Complainant stated that she had submitted medical documentation in
support of her request in response to the Agency’s physician. On March 11, 2013, Complainant
emailed her supervisor again about the request. On March 12, 2013, her supervisor denied the
request because the request did not include an expected return to duty date.
Worker’s Compensation Claim Denied
In March 2013, Complainant discovered that the Agency had not properly compiled her worker’s
compensation paperwork and delayed submitting her claim to the Department of Labor. On
January 18, 2013, Complainant filed a worker’s compensation claim citing work-related
psychiatric illness (anxiety disorder) caused by workplace discrimination and harassment. She
cited October 2008, as the initial date of the alleged injury. On February 22, 2013, the Agency
forwarded her claim to the Department of Labor’s Office of Worker’s Compensation Program
(OWCP). On March 27, the Agency sent OWCP another transmission regarding Complainant’s
claim, indicating that this was the “Second Submittance” and that one-hundred and twenty-three
(123) pages had previously been submitted to OWCP.
In a letter dated April 10, 2013, OWCP responded and reported that Complainant’s claim had
inadvertently been filed with a prior claim. It also advised that the information provided by
Complainant supporting her claim was deficient. On July 21, 2013, OWCP denied the claim citing
that there was insufficient evidence in response to the April 10, 2013 notice of deficiency and
insufficient evidence to establish that Complainant’s medical condition arose “during the course
of employment and [was] within the scope of compensable work factors.” On January 22, 2014,
OWCP’s Branch of Hearings and Review affirmed the denial.
Reasonable Accommodation Request
On or about January 14, 2013, Complainant requested a reasonable accommodation seeking a
permanent reassignment. In February 2013, in response to her request, Complainant indicated that
she was offered three positions that were not suitable to her skill set, and was provided a detail
assignment instead. The Agency maintained that it received Complainant’s request for an
accommodation on or about January 14, 2013. The request was forwarded to the Agency’s
physician for a medical determination. Upon review, Complainant’s request was scheduled for a
required panel meeting. Following the panel meeting, the Agency began a search for a
reassignment, commencing with a request for a current resume from Complainant. On June 13,
2013, Complainant was offered a permanent reassignment to Printing Services Specialist, PG-12,
position in Finance and Administration. The Agency also found two other opportunities in
Customer Service. On August 2, 2013, Complainant emailed the Agency to advise them that she
was accepting the Printing Services Specialist position in Finance.
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She added that it was “under duress … knowing that if she didn’t accept one of the offers, she
would have to return to her position of record and work under the same leadership that caused my
illness.”
By September 19, 2013, Complainant had yet to execute the documents necessary to effectuate
her reassignment. By email, an Agency official requested to meet with Complainant. Complainant
declined to meet in person, but indicated that she would “gladly discuss this matter . . . in writing
via email and or letter form.” On October 23, 3013, the Agency issued Complainant a
memorandum explaining that the Agency could not process her reassignment because she had
indicated she was taking the new position “under duress.” In November 2013, the Agency received
a demand letter from an attorney acting on Complainant’s behalf regarding her request for
reasonable accommodation. On February 7, 2014, Complainant was notified that her case was
being closed because she had declined the reassignment offer. On February 11, 2014, Complainant
responded by stating that she had reconsidered and wanted to accept the reassignment offer.
Pursuant to Complainant’s request, she was reassigned to the position of Printing Services
Specialist, effective February 23, 2014.
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 timely requested a hearing.
When Complainant did not object, the AJ assigned to the case granted the Agency’s October 11,
2016, motion for a decision without a hearing and issued a decision without a hearing on April 18,
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.
CONTENTIONS ON APPEAL
Complainant, through counsel, asserts, among other things, that she established a prima facia case
of discrimination, and that the Agency treated her less favorably than her male, non-Black
coworkers. She also contends that the Agency failed to properly engage in the interactive process.
Complainant also contends that the failure to hold a hearing deprived her of establishing the facts
necessary to demonstrate discrimination.
The Agency submitted a brief supporting the AJ’s findings and ruling.
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).
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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, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
We must first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
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 fact is “material” if it has the potential to affect the
outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal
No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of
the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
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Upon review of the record, we find that there are no genuine issues of material fact presented here.
The record has been adequately developed, Complainant was given ample notice of the Agency’s
motion for a decision without a hearing, she was given a comprehensive statement of the allegedly
undisputed material facts, she was given the opportunity to respond to such a statement, and she
was given the chance to engage in discovery before responding, if necessary. We find that, even
assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as
explained below. Therefore, we find that the AJ’s issuance of a decision without a hearing was
appropriate.
Disparate Treatment and Harassment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222
(1st Cir. 1976). 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the 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, the complainant retains the
burden of persuasion, and it is his or her obligation to show by a preponderance of the evidence
that the agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S.
Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983).
In order to establish a claim of hostile environment harassment, 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 environment, 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).
For purposes of analysis, and without so finding, we assume, arguendo, that Complainant
established a prima facie case of discrimination under a disparate treatment analysis. Further, we
find that the Agency provided legitimate, nondiscriminatory reasons for each of its actions as set
forth above regarding claims 1 – 4. We also find that Complainant did not prove that the Agency’s
nondiscriminatory explanations for its actions are pretext for unlawful discrimination.
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Moreover, we find that Complainant was not denied a reasonable accommodation because she was
reassigned.2
Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a 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 Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).
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.
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.
2 On appeal, Complainant argued that the Agency failed to engage in the interactive process. We
disagree; however, it is important to note that Commission precedent establishes that an agency
cannot be held liable solely for a failure to engage in the interactive process. Liability for a failure
to engage occurs when the failure to engage in the interactive process results in the agency’s failure
to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal
No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003).
The sole purpose of the interactive process is to facilitate the identification of an appropriate
reasonable accommodation, and an agency’s failure to engage in this process does not give rise to
a separate cause of action because the interactive process is not an end in itself. Broussard, EEOC
Request No. 05A30114.
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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.
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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
November 14, 2018
Date
