0120152781
03-05-2018
Leona L.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leona L.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120152781
Agency No. HS-ICE-02257-2013
DECISION
On August 27, 2015, 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 May 19, 2015,2 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency discriminated against Complainant on the basis of disability and in reprisal for prior protected EEO activity by failing to provide her with a reasonable accommodation; and (2) whether the Agency subjected Complainant to a hostile work environment on the bases of disability and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst, GS-0343-14, in the Guidance, Procedures, and Information (GPI) Section, Law Enforcement Support and Information Management (LESIM) Division, Homeland Security Investigations, in Washington, D.C.
In a formal complaint filed on April 17, 2014, and subsequently amended, Complainant alleged that the Agency discriminated against her on the basis of disability and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973. The Agency defined the accepted issues as follows:
Whether Complainant, a Management and Program Analyst, was discriminated [against] and subjected to a hostile work environment on the bases of disability (Physical) and retaliation, beginning in January 2012 and continuing, as evidenced by the following incidents:
1. in September 2013, Complainant was unable to perform her work assignments because of the amount of fragrance located where she performed her duties;
2. after Complainant reported the incidents of excessive use of air fresheners in the work area, on January 9, 2014, Complainant was issued a Proposal for Suspension of Thirty Days for failure to follow instructions, in retaliation for Complainant's request for reasonable accommodation;
3. in January 2013, Complainant was removed from the Pilot Telework Program, despite the fact that Complainant had health issues and [it] would pose a hardship for her;
4. management informed Complainant that, if her performance did not improve, she would be placed on a Performance Improvement Plan (PIP), despite the fact that she notified them that the reason she could not perform her duties was because of co-workers entering the "Fragrance Sensitivity" area, wearing fragrances that made Complainant ill;
5. Complainant has been denied her request for a reasonable accommodation to work from home;
6. management has refused to enforce, since January 2012, a Scent Free Zone as a reasonable accommodation in order for Complainant to perform her duties and, in April 2014, has continued to fail to provide her with workplace space to accommodate her medical condition; and
7. on May 20, 2014, Complainant learned that she was being suspended for five calendar days for disrespectful conduct.
By letter dated November 21, 2011, Complainant's physician asked the Agency to provide Complainant with a smell-free zone. The physician stated Complainant had a history of fibromyalgia and migraine headaches and that fragrances and bright lights exacerbated her headaches and muscle and joint pain.
Complainant's first-level supervisor, the GPI Section Chief (S1), responded to Complainant's reasonable-accommodation request on January 24, 2012. She offered to purchase an air purifier for Complainant's immediate work area; to purchase face masks for Complainant to wear; to post a notice near Complainant's work area stating that it was a fragrance-free zone; and to allow Complainant to take fresh-air breaks, as long as they did not exceed the normal 30-minute lunch time and two 15-minute breaks. S1 stated that Complainant could use accrued leave for breaks that exceeded the normal allowance, as long as she requested and received prior approval. S1 also stated that, with Complainant's consent, the Agency would ask employees who sit near Complainant or who have daily contact with her to refrain from using heavy fragrances. S1 noted, however, that the Agency could not ask them to stop using certain products.
Complainant moved to a different cubicle on March 8, 2012. According to Complainant, the cubicle "was out of a major traffic area," and she experienced fewer exposures to scents. The Agency relocated Complainant to another cubicle, in the Data Management Unit (DMU), in July 2012 and designated the area as a scent-free zone. According to S1, Complainant would e-mail S1 when she smelled a fragrance, S1 would inform the DMU manager, and the manager would address the matter with the offending employee.
On August 16, 2012, Complainant and S1 signed a telework agreement permitting her to telework full time. The agreement provided that Complainant, among other things, would call S1 daily, let S1 know if there would be any problems meeting deadlines, submit a daily status report, submit a draft of the LESIM newsletter five business days before the first of the publishing month, and distribute the newsletter to LESIM staff by the first of the month.
Complainant received her Fiscal Year (FY) 2012 performance evaluation on October 25, 2012. S1 gave Complainant an overall rating of "Exceeded Expectations."
On January 8, 2013, S1 met with Complainant and counseled her about her performance. According to a Verbal Counseling Follow-Up Memorandum, S1 discussed Complainant's "[f]ailure to proofread correspondence and correct errors before sending," her "[l]ack of attention to detail in written communication," and her failure "to meet expectations as the Communications Program Manager." S1 stated in the Memorandum that, on January 4, 2013, Complainant sent the LESIM newsletter to the division without proofreading her e-mail, that this was the third time that Complainant had sent the newsletter in the wrong format, that she had counseled Complainant about this twice before, and that LESIM management had asked that Complainant no longer be allowed to send anything to the division. S1 also stated that, in Complainant's FY 2012 performance evaluation, she had expressed concern about Complainant's attention to detail and had counseled Complainant to double-check her work.3
The Agency removed Complainant from telework, and she returned to the Agency's facility on January 14, 2013. Complainant submitted a second reasonable-accommodation request on January 15, 2013, asking to telework on a permanent basis.
On February 1, 2013, the Agency's Occupational Safety and Health Program Manager (OSH Manager) visited Complainant's work area at her request. He sent an e-mail to Complainant, S1, the Associate Deputy Assistant Director of LESIM (S2), and an Employee and Labor Relations Specialist (ELR Specialist) noting that he previously had provided recommendations concerning Complainant's working conditions and had been assured in March 2012 that the matter was resolved when Complainant moved to a different work space. He concluded that, based on her previously documented medical conditions, Complainant was "working in [an] unsafe and unhealthful working environment" in violation of Agency standards. Although he initially had asked to meet to discuss the matter, the OSH Manager determined that a meeting was not necessary because of "other internal management/employee work related issues."
Also on February 1, 2013, one of Complainant's co-workers (CW1) sent an email to the LESIM Data Management Unit Chief (S3) stating that the OSH Manager told employees that they could not have any scents. CW1 asserted that this was "ridiculous" and that Complainant was "walking around without her mask and still complaining about scents and her headache" even though Complainant was "not wearing her freaking mask." S3 forwarded the e-mail to S1 and S2.
By memorandum dated February 7, 2013, Complainant's physician stated that scents trigger Complainant's migraines and fibromyalgia, that she cannot concentrate when she experiences migraines, and that she "should avoid exposure to scented products." The physician also stated that Complainant "does not have any physical limitations [and] does not have a medical condition that affects any of her essential life functions." She asked the Agency to provide Complainant with full-time telework.
On February 28, 2013, Complainant informed S1 that she could not retrieve files from another employee's work area because of scents in the area. The next day, the other employee agreed to meet Complainant at a different location.
S1 gave Complainant her mid-year performance appraisal on April 16, 2013. She stated that Complainant had not met expectations, "particularly in the area of communications," and had made "numerous mistakes" involving the LESIM newsletter. S1 also stated that Complainant had demonstrated disruptive behavior, "particularly in relation to working under a modified cardboard box, and crafting a cardboard box into a makeshift hat on a day when she forgot to bring her own hat." She noted that the Agency had revoked Complainant's telework arrangement because of "low performance and frequent, repeated mistakes."
On May 31, 2013, Complainant asked S3 to investigate an odor that Complainant smelled outside of S3's office. She later sent an e-mail to S3 apologizing for bothering S3. S3 replied that the apology was "not necessary and the situation was not a bother." In a June 13, 2013, e-mail to S1, S3 estimated that the incident had occurred during the week of June 3, noted that she had been on the telephone when Complainant came by, and stated that she had told Complainant that her office was not in the scent-free zone and that the individuals in the area had rights as well.
In a June 12, 2013, e-mail to Complainant, S1 stated that the facilities staff would move a filing cabinet closer to Complainant's work area and that Complainant should remove the files from the cabinet temporarily. Complainant asked whether the problem with an air freshener near the cabinet had been resolved, and S1 replied that Complainant should wear a mask while removing the files. Complainant responded that she had worn a mask in the space but that it had provided "no protection" because of "the amount of toxins in that space." S1 told Complainant that the Agency had provided masks as a reasonable accommodation and that Complainant should wear a mask when going to other areas. Complainant replied that she would not wear a mask anymore because it provided no protection. She asked whether S1 was ordering her to endanger herself by moving the files.
On the morning of June 13, 2013, Complainant sent an e-mail to S1 and the OSH Manager stating that someone near her cubicle was wearing or using a strong scent. S1 replied that Complainant should include only "management officials with decision-making authority in [her] e-mails" and could contact the Disability Program Manager (DPM) or the Reasonable Accommodation Coordinator (RAC) if she had questions about the reasonable-accommodation process. Complainant forwarded S1's e-mail to the OSH Manager, DPM, and RAC. She stated that "a standard issue, off the shelf type mask" had not helped her and that the OSH Manager was researching the matter. In addition, she expressed concern that her managers and reasonable-accommodation officials were excluding her physician and the OSH Manager from discussions.
That afternoon, the OSH Manager sent information about a "Fragrance Free Proposal for GSA Buildings" to DPM, RAC, and Complainant. DPM replied that she and RAC were "taking the appropriate actions" and asked the OSH Manager not to interfere in the reasonable-accommodation process. The OSH Manager responded the next day that he was not interfering in the process, that he had a mandate to participate in the Agency's reasonable-accommodation processes, and that he had been part of the process regarding Complainant's request for two years.
Also on June 13, 2013, a facilities employee went to Complainant's work area to adjust the lights and ventilation in the area. Complainant told the employee that he was in a scent-free zone and needed to leave. CW1 complained about the incident to S3, and another co-worker complained to a different Unit Chief.
By memorandum dated June 17, 2013, the Agency's Medical Officer (MO) stated that Complainant has a "disability" and that the Agency had provided Complainant with the following accommodations: scent-free-zone signs, masks, allowing Complainant to attend meetings through teleconferencing, an air purifier, assessment of "HVAC to ensure best airflow and fresh-air intake," and reissuance of "the in-house directive regarding strong colognes and perfumes." According to MO, Complainant's "request to be moved to a more insulated work space was not possible." He concluded that it would be difficult to assess workplace scents because "there is no objective test to confirm a scent-free environment" and that the accommodations that the Agency had provided were reasonable, effective, and adequate.
In two June 19, 2013, e-mails to S1, Complainant stated that someone near her had used a scented product and asked if she was "being tested." S1 asked what Complainant meant by "tested." Complainant replied, "Like a test rat is what I meant, but I'm not looking for a response to that part of it, I'm just getting frustrated." S1 responded that the Agency had "done everything reasonable to try to make [Complainant's] area a scent-free zone."
In a June 26, 2013, e-mail to the ELR Specialist, S1 stated that she and S2 had met with Complainant the previous day because Complainant again had chased a facilities employee away from her area. S1 and S2 told Complainant not to give orders to facilities personnel. According to S1, Complainant became "very upset," accused people of "maliciously spraying things to make her ill," and called S1 "a mean and ugly person."
By memorandum dated July 9, 2013, S1 denied Complainant's request for the reasonable accommodation of full-time telework. S1 stated that the Agency had discontinued Complainant's previous telework arrangement because Complainant had not proofread correspondence, showed a lack of attention to detail, and had not met expectations as a Communications Program Manager. She listed the accommodations that the Agency had provided to Complainant, including a fan, an air purifier, the removal of florescent lights near Complainant's work space, the installation of fragrance-free-zone signs in the area, allowing Complainant to call into meetings, and allowing Complainant to take leave and fresh-air breaks. In addition, S1 noted that the Agency had relocated Complainant to a work space in a low-traffic area and that facilities personnel had replaced air filters, directed air vents toward the window, and increased the air flow. She stated that Complainant had declined the Agency's offer to reconfigure her work space and to purchase surgical masks for her. S1 also stated that the Agency would change the "Scent Free Zone" signs to "Fragrance Sensitivity Zone" signs and would place the signs in the path that Complainant took to enter and leave the office.
S2 sent a July 29, 2013, e-mail to LESIM personnel stating that the Agency had established a Fragrance Sensitivity Zone as a reasonable accommodation for an employee. She noted that signs would identify the designated area and asked employees "to be mindful of wearing, spraying, or having any strong perfumes, colognes, or other intense fragrances in the designated" area.
On November 5, 2013, Complainant received a rating of "Achieved Expectations" in her FY 2013 performance evaluation. S1 noted that Complainant had experienced performance problems in the first half of the rating period but that her "attention to detail improved somewhat during the second half of the year." She also noted that Complainant received positive feedback for conducting reviews and an "On-the-Spot" award for her work with a telephone list. In addition, S1 stated that there had been communications issues concerning Complainant's fragrance sensitivity and that Complainant had acted inappropriately. According to S1, Complainant confronted other employees "multiple" times and engaged in "written correspondence with her supervisor that displayed rudeness and insubordination."
On January 9, 2014, the Agency issued Complainant a Notice of Proposed 30-Day Suspension. The Notice, signed by a member of a Discipline and Adverse Action Panel (DAAP), charged Complainant with disrespectful conduct and failure to follow instructions. With respect to disrespectful conduct, the Notice cited the following "specifications": (1) on June 3, 2013, Complainant interrupted S3 while she was on the telephone to complain about fragrances; (2) on June 13, 2013, Complainant rudely ordered a facilities employee to leave the area because she suspected that he was wearing cologne; (3) on June 19, 2013, Complainant accused S1 of treating her like a test rat; and (4) on June 25, 2013, Complainant called S1 a mean and ugly person in the presence of S2. The Notice cited the following specifications regarding failure to follow instructions: (1) on February 1, 2013, despite S1's instruction to report scent-related problems to S1 by e-mail, Complainant confronted CW1 about a suspected fragrance in an aggressive manner and disrupted her from performing her job; (2) on February 28, 2013, Complainant told S1 that she would refuse to retrieve files from a co-worker because of the fragrances in the co-worker's area; and (3) on June 12, 2013, Complainant refused to move files from a cabinet after S1 instructed her to do so.
In response, Complainant argued that managers did not enforce restrictions on the use of scented products in the scent-free zone and that the Agency failed to provide her with a safe working environment. In the "Background" section of her response, Complainant stated that the OSH Manager investigated her claim of unsafe working conditions on February 1, 2013, and noticed that some employees were wearing fragrances or using air fresheners in the scent-free zone. She did not believe that she had been disrespectful to S3 when she asked S3 to investigate a scent near S3's office. Complainant denied that she was rude to the facilities employee. She stated that the employee was wearing a fragrance, that she asked him to step outside of her cubicle, that she explained to him that he was in a scent-free zone, and that she "may have been a little direct but . . . would not call it rude." Complainant also stated that she did not accuse S1 of treating her like a test rat. According to Complainant, she told S1 that she believed that her co-workers were treating her like a test rat by wearing different fragrances to see which ones would cause Complainant to complain. She asserted that she did not say that S1 was mean and ugly but, instead, asked S1 why S1 was being mean and ugly toward her. Complainant asserted that she used the term "ugly" to mean hostile or quarrelsome. She alleged that CW1 did not like her and was hostile toward her. In addition, she noted that CW1's February 1, 2013, e-mail to S3 stated that the OSH Manager said that employees could not use scents, not that Complainant had made the statement. Further, Complainant stated that she could not retrieve files from another employee's work space or remove files from a file cabinet because perfumes and air fresheners made the areas unsafe for her. Complainant argued that she tried to protect herself from fragrances and that managers did not do all that they could have done to protect her.
By letter dated May 19, 2014, the Assistant Director for International Operations notified Complainant that he had mitigated the suspension to five calendar days. He sustained three specifications: the June 13, 2013, matter involving the facilities employee; the June 25, 2013, accusation that S1 was being mean and ugly; and the February 1, 2013, confrontation with CW1. The Assistant Director found that Complainant had treated the facilities employee disrespectfully and unprofessionally and that it was inappropriate and disrespectful to accuse S1 of being mean and ugly toward her. He also found that, by confronting CW1 about a suspected fragrance, Complainant failed to follow S1's instructions to report scent-related problems to S1 by e-mail. He notified Complainant that the Agency would suspend her from June 9 through June 13, 2014.
In her affidavit, Complainant stated that exposure to fragrances affected her ability to focus and concentrate and that she could work efficiently at home. She asserted that, when she returned to the office in January 2013, other employees did not adhere to the scent-free zone restrictions. She argued that managers did not enforce the restrictions but, instead, simply asked employees not to wear fragrances.
Complainant alleged that the Agency denied her a reasonable accommodation and subjected her to a hostile work environment in retaliation for her January 15, 2013, request to telework full time. She also alleged that the Agency retaliated against her when it changed the name of the restricted area from "Scent Free Zone" to "Fragrance Sensitivity Zone" in July 2013. She asserted that her environment became worse when the Agency made this change.
Complainant further asserted that face masks "were uncomfortable and hot, and they rubbed [her] make-up off" and that the air purifier that the Agency provided in January 2012 was not effective because it pulled fragrances into her cubicle. She alleged that, after she stopped teleworking and returned to the office in 2013, CW1 and two other co-workers "constantly" exposed her to fragrances. As a result, she experienced migraine headaches three or four times per week. Complainant asserted that the OSH Manager determined that "some of the employees working in the Scent Free Zone were in fact wearing fragrance and using air fresheners" when he visited Complainant's area on February 1, 2013. She also asserted that S1 told her in April 2014 that a cubicle that was away from foot traffic would soon become available and that S1 would coordinate Complainant's move to it. According to Complainant, the cubicle was in a corner and had little foot traffic, and she could have used an oscillating fan to keep the fragrances away. Someone else, however, moved into the cubicle.
Complainant acknowledged that, while she was teleworking in January 2013, she put the wrong year on the LESIM newsletter and mistakenly sent it to the division in the wrong format. She claimed that these mistakes "were nothing new" and that she had made similar mistakes when working in the office. She argued that her performance did not change; rather, the standards by which managers judged her work changed. Complainant also argued that the Agency subjected her to a hostile work environment, in which she was exposed to fragrances, when it required her to return to the office.
In addition, Complainant stated that S1 told her during her FY 2013 performance review that she would be placed on a PIP if her performance did not improve. Complainant contended that managers should have foreseen the consequences of removing her from telework, that they should have placed her on a PIP, and that she would have had a stronger justification for her reasonable-accommodation request if they had done so.
Further, Complainant contended that she was not rude to the facilities employee, that her "mean and ugly" comment was taken out of context, and that she did not confront CW1.4 She alleged that the Agency suspended her in retaliation for her request for permanent telework. She also alleged that managers created a hostile work environment by not explaining to other employees what a scent-free zone was, not holding people accountable for their violations of the scent-free zone, requiring Complainant to return to the office and be exposed to fragrances, and claiming that other employees have a right to wear perfume.
S1 stated in her affidavit that, after the Agency moved Complainant to the cubicle in the DMU, other employees complained that Complainant confronted them about whether they were wearing fragrances. She also stated that the OSH Manager asked employees whether they were wearing fragrances, that he did not have permission to do this, that some employees and managers complained about his actions, that S1 contacted the Reasonable Accommodation Office about the OSH Manager, and that his manager instructed him to end his involvement in the matter. S1 explained that the Agency changed the name of the restricted area from "Scent Free Zone" to "Fragrance Sensitivity Zone" "because asking employees not to wear any fragrances was an infringement on their rights" and many employees complained about it. In addition, S2 stated that managers could not ensure that Complainant's work area would be scent free because people from other offices enter the area.
S1 acknowledged that she told Complainant about a vacant cubicle in a different unit in April 2014. Someone from the unit moved into the cubicle before S1 could ask for it. She asserted that managers "decided not to push the issue" because the cubicle was near a break room and water cooler and Complainant would be exposed to fragrances. According to S1, Complainant stated that employees who sat near the water cooler used fragrances that bothered her.
S1 stated that she, S2, and the LESIM Deputy Assistant Director removed Complainant from the pilot telework program because of problems with Complainant's job performance. Although S1 thought that Complainant's performance would improve if she had less exposure to fragrances, Complainant "continued to make the same mistakes she made when she worked at the office." The Agency ended the telework arrangement because Complainant's performance did not improve, and it denied her January 2013 request for telework because of her job performance.
S1 also stated that she told Complainant that she would be placed on a PIP if her performance did not improve "to give her a warning." According to S1, the ELR Specialist told her that "Complainant could not be rated below 3.0 because she had not been placed on a PIP during the performance period." S1 asserted that she wanted to give Complainant an opportunity to improve because "this was the first year she had her major performance problems." In addition, S1 stated that Complainant's proposed suspension "was based only on her conduct."
The ELR Specialist confirmed that she recommended that S1 inform Complainant that she could be put on a PIP if her performance did not improve. She stated that it was "standard protocol" and "prudent management" to warn an employee about performance concerns.
S2 stated in her affidavit that the Reasonable Accommodations Group recommended that the Agency change the name of the restricted area to "Fragrance Sensitivity Zone." Like S1, S2 stated that the Agency removed Complainant from the pilot telework program and denied her January 2013 request for telework because of her performance. She argued that the Agency offered "numerous accommodations" to Complainant, that none of them seemed to work, and that the Agency did not have authority to tell employees not to wear any fragrances.
The Assistant Director for International Operations stated that he relied on information provided by the DAAP and Complainant when deciding to mitigate the proposed thirty-day suspension to five days. The EEO Investigator noted that Complainant argued that CW1's February 1, 2013, e-mail did not support the charge that Complainant had confronted CW1 on that date, and he asked whether the Assistant Director had received any addition information about the incident. The Assistant Director responded, "I relied upon all of the documentation that was provided by both the DAAP and the Complainant." He stated that he did not speak with the OSH Manager because Complainant did not mention him in her oral reply to the proposed suspension.
Final Agency Decision
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant did not prove that the Agency discriminated against her as alleged. The Agency concluded that Complainant's request for an entirely fragrance-free work environment was not a reasonable accommodation and that it would have imposed an undue hardship on the Agency. The Agency also concluded that managers denied Complainant's telework request because she had performance problems during her previous telework arrangement. In addition, the Agency found that Complainant did not show that the alternative accommodations that it provided were not effective.
Further, the Agency found that it articulated a legitimate, nondiscriminatory reason for removing Complainant from the pilot telework program and that Complainant did not show that the articulated reason was a pretext for discrimination. It similarly found that Complainant did not prove that its articulated reasons for issuing the proposed suspension were pretextual.5
Finally, the Agency concluded that Complainant did not establish that it subjected her to a discriminatorily hostile work environment. It found that managers' actions were based on their attempts to respond to Complainant's requests for reasonable accommodation and performance issues and that the incidents at issue were not sufficiently severe or pervasive to constitute harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the accommodations that the Agency provided to her in January 2012 were not effective. She states that the air purifier pulled fragrances into her work space and that masks made her feel light headed. She asserts that the Agency could have provided her with a scent-free zone. Complainant further asserts that the Agency, which did not reach out to her doctor, did not engage in the interactive process. In addition, Complainant contends that the Agency should not have removed her from the pilot telework program for performance issues because the Agency could have taken corrective actions while she continued to telework. She argues that the Agency should have permitted her to telework if it could not have provided her with a scent-free work space. Complainant also argues that the Agency subjected her to disparate treatment and a hostile work environment.
In response, the Agency argues that Complainant has not established that the Agency subjected her to a hostile work environment because she has not shown that discriminatory animus motivated the actions at issue or that the incidents were severe or pervasive. The Agency also argues that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has not shown that the articulated reasons were a pretext for discrimination. The Agency asserts that a scent-free zone was not a reasonable accommodation and that it would have caused an undue hardship to provide one. According to the Agency, it was impossible to have a completely scent-free zone because employees from other offices had to walk through the area. In addition, the Agency argues that permitting Complainant to telework on a permanent basis would not have been an effective accommodation because Complainant's performance did not improve while she was teleworking.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the 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).
A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases," U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002); this means it is "reasonable" if it appears to be "feasible" or "plausible." Id. An accommodation also must be effective in meeting the needs of the individual. Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. If more than one accommodation will enable an individual to perform the essential functions of his or her position, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R. pt. 6130 app. � 1630.9; see also Enforcement Guidance on Reasonable Accommodation at Question 9. "The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability." 29 C.F.R. pt. 6130 app. � 1630.9.
Allowing an employee to telework is a form a reasonable accommodation. "An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship." An employer may deny an employee's request to telework if it can show that an alternative accommodation would be effective or that telework would cause an undue hardship. Id. at Question 34.
In this case, Complainant requested reasonable accommodation when she asked the Agency to provide her with a scent-free work environment and to permit her to telework on a full-time basis. We assume for purpose of analysis only, without so finding, that Complainant is a qualified individual with a disability.
The Agency attempted to reduce Complainant's exposure to fragrances by, among other things, providing her with an air purifier, an oscillating fan, and face masks. It also placed her in a low-traffic area, adjusted the ventilation in her work area, and asked employees "to be mindful of" using strong fragrances in her area. Complainant has stated that the Agency's actions were not effective and that other employees continued to use air fresheners and wear perfumes.
The Commission has held that a request for a work environment that is entirely fragrance free was not a reasonable accommodation request and would have imposed an undue hardship. Roberts v. Dep't of Transp., EEOC Appeal No. 01970727 (Sept. 15, 2000) (agency was not required to provide an entirely fragrance-free environment for complainant who had multiple chemical sensitivity, but it should have engaged in the interactive process to determine whether it could have provided complainant with telework, an air filter, or an office involving limited contact with others); see also Letty K. v. Soc. Sec. Admin., EEOC Appeal No. 0120142135 (Nov. 30, 2016), req. for reconsid. denied, EEOC Request No. 0520170193 (May 18, 2017) (agency fulfilled its obligations under the Rehabilitation Act when it offered to move complainant's work station, changed cleaning supplies, banned the use of aerosols and cleaning products without approval, spoke to employees who violated the ban, and granted complainant's request for leave). Having reviewed the evidence of record, we find that it would have been an undue hardship for the Agency to provide Complainant with a work environment that was entirely fragrance free. Despite the accommodations that the Agency provided, Complainant continued to experience exposure to fragrances. Absent undue hardship, the Agency had a responsibility to ensure that employees did not use air fresheners and cleaning products near Complainant's work area. The Agency, however, could not regulate the items, such as perfumes and bath soaps, that employees put on their bodies. Because Complainant complained about these items as well as about air fresheners, the Agency could not have provided her with the scent-free environment that she wanted.
We note that Complainant appears to argue that she could have occupied the cubicle that S1 mentioned to her in April 2014. In that regard, she has asserted that she could have used a fan to keep fragrances away from her. The record establishes, however, that Complainant continued to complain about fragrances even when she had an oscillating fan. Accordingly, we find that placing Complainant in the cubicle would not have been an effective accommodation.
We also find that that it would not have been an effective accommodation to provide Complainant with full-time telework. S1 stated that the Agency revoked Complainant's telework arrangement because of Complainant's poor performance, and Complainant acknowledged that she made mistakes. Given that Complainant did not perform adequately when teleworking, the Agency was not required to provide her with a permanent telework arrangement.
Accordingly, we find that the Agency did not unlawfully fail to provide Complainant with a reasonable accommodation when it did not provide her with an entirely scent-free environment and when it denied her request to telework on a full-time basis.
Disparate Treatment
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 she 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 802 n.13. The burden 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). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). A request for reasonable accommodation is protected activity. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, at II.A.2.e. (Aug. 25, 2016).
We assume for purposes of analysis only, without so finding, that Complainant has established prima facie cases of discrimination based on disability and reprisal.
The Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Agency removed Complainant from the pilot telework program because of poor performance. S1 told Complainant that she would be placed on a PIP to give her a warning about her performance problems. The Agency issued the Notice of Proposed 30-Day Suspension because of four instances of disrespectful conduct and three instances of failure to follow instructions. It subsequently mitigated the action and suspended Complainant for five calendar days because Assistant Director for International Operations sustained three specifications: that Complainant rudely ordered a facilities employee to leave the area on June 13, 2013; called S1 a mean and ugly person on June 25, 2013; and confronted CW1 about a scent on February 1, 2013.
Complainant has not shown that the articulated reasons were a pretext for discrimination. There is no evidence to support her claim that she would have had a stronger justification for her reasonable-accommodation request if managers had placed her on a PIP instead of just warning her about one.
With respect to the suspension, we note that Complainant denied that she confronted CW1 and stated that the OSH Manager witnessed the events of February 1, 2013. Whether Complainant confronted CW1, as the Assistant Director for International Operations stated in the suspension notice, is relevant to whether that Agency's articulated reasons for the suspension are credible. Therefore, the EEO Investigator should have interviewed the OSH Manager, who could have confirmed or refuted Complainant's version of events. In the absence of an affidavit from the OSH Manager, we will credit Complainant's statement that she did not confront CW1. Having done so, however, we nonetheless find that Complainant has not established that the Agency issued the suspension because of her disability or prior EEO activity. Complainant has not refuted the Agency's assertions regarding her calling S1 a mean and ugly person on June 25, 2013; and her treatment of the facilities employee. For example, Complainant has presented no evidence that other employees engaged in similar conduct but were not suspended, nor did she provide persuasive evidence that her disability or prior EEO activity played a role.
Finally, to the extent that Complainant is asserting that the Agency denied her a reasonable accommodation in reprisal for her EEO activity or because she has a disability, the record does not support that assertion. We find, therefore, that Complainant has not shown that the Agency subjected her to disparate treatment because of her disability or protected EEO activity.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her disability or protected EEO activity. A finding of discriminatory harassment is precluded based on our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected her to a hostile work environment based on disability or protected EEO activity.
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 decision and its finding of no discrimination.
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, 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
_3/5/18_________________
Date
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.
2 Complainant received the final decision on July 23, 2015.
3 The FY 2012 performance evaluation in the record does not contain these comments from S1. Undated, unsigned comments note that Complainant's duties expanded and that she "performed well in these new tasks." The comments state, "I continue to appreciate her devotion to the publication of the newsletter, and her focus on process improvement." It is not clear whether these comments pertain to Complainant's mid-year or final evaluation.
4 Complainant asked the EEO Investigator to interview the OSH Manager, who witnessed the February 1, 2013, events. The EEO Investigator declined to do so. He concluded that "such testimony should have been presented to the deciding official, [the Assistant Director for International Operations]," and that "it is not the responsibility of the EEO investigator to do an investigation of each charge of a disciplinary proposal."
5 The Agency did not specifically address Complainant's allegation that it discriminated against her when it issued the 5-day suspension. The Commission has held that, when a complaint is filed on a proposed action and the agency subsequently proceeds with the action, it should consider the proposed and final actions to have merged. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). Accordingly, we will focus our analysis on the actual 5-day suspension rather than on the proposed 30-day suspension.
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