Madelaine G.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

0120181795 (E.E.O.C. Aug. 27, 2019)

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

Madelaine G.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120181795
Hearing No. 480-2015-00626X
Agency No. BOP20140778

DECISION

On April 30, 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 2, 2018, final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUE PRESENTED

Whether there is substantial evidence to support the EEOC Administrative Judge’s decision that
Complainant was not discriminated against based on race, sex, disability, age, and/or retaliated
against for prior EEO activity when, (1) on April 8, 2014, her performance evaluation was lowered;
and (2) her request for reasonable accommodation was denied.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Discipline Hearing
Officer (OHO), GS-12, at the Agency’s Federal Correctional Complex, (FCC Victorville facility)
in Victorville, California. On May 3, 2013, Complainant filed a Notice of Traumatic Injury and
Claim for Continuation of Pay/Compensation with the Department of Labor alleging that after
reporting staff misconduct, staff displayed intimidation behavior including glares, vulgar language
and holding the door as if to prevent her from leaving. She asserted that she suffered from heart
palpitations, anxiety, lack of sleep, and headaches to include migraines.

On June 4, 2013, a supervisor (S1) signed this form as her supervisor. The record also contains a
note dated July 1, 2013, from a Clinical Psychologist (CP1) which requested that Complainant be
excused from work from July 1, 2013, until September 1, 2013, due to stress and/or depression.
The Department of Labor denied Complainant’s claim, and she used her sick leave for the absence.
The record contains another note dated October 30, 2013, from CP1 for the dates from November
1, 2013, until January 15, 2014.

Complainant also used leave without pay (LWOP) from January 15, 2014 until April 1, 2014, and
again from April 1, 2014 until April 4, 2014. She alleged that this time off was due to mental
anguish and Post Traumatic Stress Syndrome from working with a coworker (C1) against whom,
in 2010, Complainant and other female employees filed an EEO complaint alleging that he had
subjected them to sexual harassment. The record contains a note dated April 6, 2014, in which CP1
released Complainant to work, with no restrictions. However, CP1 also recommended that
Complainant be provided with office space which would afford her privacy with no interaction
with C1.

During that time period, C1 was assigned to Victorville two days per week. Complainant testified
that, on those days, she requested that he be moved to a different office. She testified that he also
came to the office on other days, unannounced and she also requested that she be notified when he
was to be in the office on a non-scheduled day. Complainant testified that when she did see C1,
he glared at her and would not speak to her.

Complainant did not return to work until April 9, 2014, and then was absent until May 5, 2014,
following knee surgery. She alleged that upon her return to work, her mobility was limited due to
the use of crutches. She testified that on or about May 5, 2014, she requested to conduct interviews
and hearings telephonically, due to her mobility issues following surgery; and that S1 refused.
Complainant testified that as a result, she took it upon herself and found another office in a different
complex when C1 came to work in her office area.

Records show that on May 6, 2014, the day after her return to work, Complainant advised S1 and
another coworker (C2) that there was an office in Central Pharmacy (where Complainant’s
husband worked) that would be a good place for her to work.

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While Complainant alleged that she was not accommodated, on May 21, 2014, in an email, she
confirmed that a video conferencing system was being set up for her near the Warden’s office.
Complainant testified that by this time, she was coming off restriction and she only used it once
and then no longer required the accommodation. Records show that on May 27, 2014, Complainant
told S1 that she was able to go to another building to conduct hearings, and S1 responded,
confirming that video conferencing was no longer required.

The new Warden (W1) testified that he became the Warden at Victorville in April 2014; and that
when he arrived, the prior Warden asked him if he had an office for Complainant because she
needed to be separated from C1. W1 added that he was also told that Complainant would be
returning to work following knee surgery and would not be able to perform in-person interviews.
He testified that he came up with the idea to arrange for video conferencing for Complainant, so
she could continue to conduct hearings. W1 testified that he provided Complainant with an office,
which contained a desk, computer, printer, telephone and video; and that on Complainant’s return
to work, she did not initially use the office, but eventually she used the office all the time. He
testified that the office was ready for Complainant prior to her return to work. W1 testified that in
June or July, he learned that Complainant was working in the Pharmacy instead of the office that
he provided for her. W1 confirmed that he told her not to work in the Pharmacy and that she should
be working in the office that he had provided for her.

Complainant testified that as a result of the Agency’s alleged failure to accommodate her, she was
behind in her work; and that while she was on leave, a coworker (C3) was supposed to have done
her work for her, but C3 refused to do so. A secretary testified that Complainant’s hearings were
being conducted by other employees.

Complainant also testified that she requested that S1 contact her when, on occasion, C1 was
unexpectedly at the office, but it was not until eight months later that he agreed to do this.
Complainant testified that when C1 did come to work on unscheduled days, she would go to her
other office. S1 testified via affidavit that when he asked staff in Human Resources if he could
advise Complainant when C1 was at work, he was advised that he could not give that information
to another employee, and he advised Complainant that he could not do so. S1 testified that
sometime later, he was told by Human Resources to notify Complainant, and he did so.

C2 testified that she worked in Human Resources until July 2014; and that at some point, she told
S1 that Complainant should be notified when C1 was at the office on an unscheduled day.

W1 confirmed that while Complainant repeatedly complained to him about her prior allegations
against C1, she never reported that any harassment occurred after he arrived at the FCC Victorville
facility.

On June 23, 2014, Complainant contacted an EEO counselor, alleging that she was discriminated
against based on her national origin, sex and age when on April 8, 2014, her evaluation was
lowered while she was out of work recovering from knee surgery.
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The rating was completed in August 2013, but Complainant indicated that she was not aware of it
until her return to work on or about April 7, 2014. Complainant testified at the hearing that she
received the evaluation on April 8, 2014, but she did not raise this issue with an EEO counselor
until June 23, 2014.

The Agency pointed out that while Complainant was out of the office from April 9, 2014, until
May 5, 2014, she provided no evidence that she was otherwise prevented from timely contacting
an EEO Counselor between May 5, 2014, and June 23, 2014, regarding her performance
evaluation. The Agency explained that Complainant has filed prior EEO complaints and as such,
is familiar with the EEO process. Therefore, the Agency maintained that this issue was untimely
raised with the EEO counselor.

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 (AJ). Complainant timely requested a hearing and the AJ held a hearing
on January 16, 2018, and issued a decision on February 20, 2018 finding no discrimination,
retaliation or a denial of a reasonable accommodation. The AJ dismissed Complainant’s allegation
concerning her performance evaluation, which she received on April 8, 2014, on the grounds that
she failed to contact an EEO counselor within the statutorily required 45-day time limitation
period.

The Agency subsequently issued a final order adopting the AJ’s decision.

CONTENTIONS ON APPEAL

Among other things, Complainant contends that inconsistencies exist in the evidence on which the
AJ based her decision, asserting that her performance evaluation claim was not time-barred as the
investigative Counselor had verbally informed her that her time off for knee surgery would not
count against the 45-days required for EEO counselor contact.

The Agency argues that the AJ properly dismissed the performance evaluation claim because
Complainant did not timely raise the issue. The Agency also argues that it gave Complainant her
requested reasonable accommodation by providing her an alternative office, explaining that it did
not have to move C1; and that it did not discriminate against her when it chose to offer her video-
conference Discipline Hearing Officer (DHO) hearings in lieu of granting her request to conduct
telephonic DHO hearings as a matter of course.

STANDARD OF REVIEW

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.
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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. An AJ’s credibility
determination based on the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the testimony, or the
testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Claim 1:

EEOC Regulations at 29 C.F.R. § 1614.105(a)(l) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The record shows that the latest
alleged discriminatory event regarding Complainant’s performance review occurred on April 8,
2014, but Complainant did not initiate contact with an EEO Counselor until June 23, 2014, which
is beyond the forty-five (45) day limitation period.

EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that she was not notified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence she was prevented by circumstances
beyond her control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. On appeal, Complainant has presented no
persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Even if the 45-day time limitation period was tolled until she returned to work
on May 5, 2014, her June 23, 2014 EEO Counselor contact would still be untimely.

Accordingly, we find that the decision to dismiss this claim was correct and is AFFIRMED.

Claim 2:

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”).
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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 reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400
(2002) (“the word ‘accommodation’. . . conveys the need for effectiveness”). That is, a reasonable
accommodation should provide the individual with a disability with “an opportunity to attain the
same level of performance, or to enjoy the same level of benefits and privileges of employment,
as are available to the average similarly situated employee without a disability.” 29 C.F.R. pt.
6130 app. § 1630.9. 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.” Id.; 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. Part 6130 app. § 1630.9.

An “undue hardship” is a significant difficulty or expense in light of the agency’s circumstances
and resources. See 29 C.F.R. § 1630.2(p). The agency bears the burden of establishing, through
case-specific evidence, that a reasonable accommodation would cause an undue hardship. U.S.
Airways, Inc. v. Barnett, 535 U.S.at 402. “Generalized conclusions will not suffice to support a
claim of undue hardship.” Enforcement Guidance on Reasonable Accommodation, “Undue
Hardship Issues.”

Assuming, arguendo, that Complainant established that she is a qualified individual with a
disability, we find that there is substantial evidence in the record to support the AJ’s determination
that she did not establish that she was denied a reasonable accommodation. Complainant was
released to return to work with no restrictions after her July 1 to September 1 absence except that
the Agency afford Complainant separation from C1. The record indicates that three days a week,
C1 was assigned to another location. On the two days that he was scheduled to work at the FCC
Victorville facility, the Agency assigned Complainant to an office located away from C1. Although
the record indicates that there were some occasions when C1 came to the FCC Victorville facility,
on an unscheduled basis, Complainant was able to work in her alternate location. There is no
indication that she and C1 had any meaningful interactions on these occasions. Complainant
testified that he looked at her, which she described as “glaring,” but that he did not speak to her.
Based on a totality of the record, we find substantial evidence to support the AJ’s finding that that
the Agency effectively accommodated Complainant. There is no evidence of any additionally
harassment allegations by C1 towards Complainant after the Agency separated them.

Complainant also requested reasonable accommodation due to a knee injury for which she had
undergone surgery. With respect to that request, we again find substantial evidence to support the
AJ’s determination that management took effective steps to accommodate Complainant.
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First, W1 was informed that she would need some accommodation regarding DHO hearings
because anticipated post-surgery mobility restrictions would preclude her physical entry into the
institution to conduct in-person DHO hearings. Second, the evidence shows, and Complainant
admitted, that W1 provided an alternative office, a viable and effective option to which
Complainant had unrestrained access within which to perform her job duties.

However, rather than use the alternative office, the day after she returned to work, Complainant
informed her supervisor that she had found an office in the Pharmacy that was satisfactory to her,
indicating her preference, by choice, for the Pharmacy. Complainant was informed, however, that
the Pharmacy was not an appropriate location for a DHO hearing. There is no evidence to show
that the alternative office provided by W1 was not an effective accommodation for Complainant’s
temporary impairment. We note that while an employee may state a preference for an
accommodation that meets their needs, and the employer should consider that preference,
ultimately it is the employers decision as to what accommodation to provide so long as it is
effective. See EEOC Enforcement Guidance: Reasonable Accommodations and Undue Hardship
Under the Americans With Disabilities Act, Notice No. 915.002 (Oct. 17, 2002); Appendix to
EEOC Regulations at 29 C.F.R. § 1630.9.

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. 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.
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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

August 27, 2019
Date