Mandi G.,1 Complainant,v.Denise Turner Roth, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120141810 (E.E.O.C. Oct. 20, 2016)

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

Mandi G.,1
Complainant,

v.

Denise Turner Roth,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120141810

Hearing No. 550-2012-00294X

Agency No. 11-R9-PBS-BAM-20

DECISION

The Commission accepts Complainant’s appeal from the Agency’s March 14, 2014 final order
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Contracting Officer at the Agency’s Federal Acquisition Service, MAS Administrative Section
facility in San Francisco, California. On April 12, 2011, Complainant emailed her supervisor
(S1) to inform her that her doctor had placed her on medical leave beginning April 10, 2011
through May 24, 2011, and that she would be filing a workers’ compensation claim for stress.
S1 responded informing Complainant that she would process Complainant’s workers’
compensation paperwork, but she still needed to provide medical documentation supporting her
absence to avoid being considered absent without leave (AWOL). Complainant provided a
copy of the doctor’s note.

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 April 14, 2011, S1 further informed Complainant about the paperwork needed for her
workers’ compensation claim, including that she needed to elect to take sick or annual leave to
cover her absences and that continuation of pay (COP) was not automatic for this type of
claim. Complainant indicated on her workers’ compensation paperwork that she wanted COP.

On April 17, 2011, Complainant emailed S1 stating that “to preserve [her] health and not face
further stress,” she would be teleworking until the “Office of Government Ethics and
Congressional Investigations have been completed.” Complainant had contacted the office of
Representative Nancy Pelosi requesting assistance regarding her workplace issues including
alleged bullying, performance plan issues, and threats of termination. S1 responded informing
Complainant that while she had an approved telework schedule, she was not authorized for
additional teleworking days. S1 further informed Complainant that she could face disciplinary
action if she failed to report to the office as scheduled; however, she should be not working at
all if she were under the care of her doctor. S1 added that based on Complainant’s previous
emails, she still needed to request leave to cover her absence for the period of April 11 through
April 14, 2011. S1 noted that the doctor’s note Complainant previously submitted was
insufficient to support the absence.

On May 13, 2011, a Constituent Caseworker for Representative Pelosi’s office contacted the
Agency regarding Complainant’s Congressional Inquiry. On May 24, 2011, S1 prepared a
draft response for senior management. On August 22, 2011, the Chief People Officer
submitted an official response to Representative Pelosi’s office.

On May 26, 2011, Complainant requested that S1 forward her a copy of the Family Medical
Leave Act (FMLA) forms for her doctor to file once her COP lapsed. On May 26, 2011, S1
responded to Complainant’s request for FMLA information. S1 provided Complainant the
requested FMLA forms and informed Complainant that her COP would end on May 27, 2011.
On June 20, 2011, Complainant returned the FMLA paperwork. S1 approved Complainant’s
request for FMLA leave for June 20, 2011. On June 30, 2011, Complainant requested
additional FMLA leave for previous absences associated with her pending on-the-job injury
claim filed with the Office of Workers’ Compensation Programs (OWCP). OWCP ultimately
denied Complainant’s claim and her COP entitlement was cancelled retroactively.
Complainant was informed that FMLA leave could not be applied retroactively in substitute of
COP leave without proof of incapacitation.

On July 14, 2011, Complainant was scheduled to attend a training session remotely on one of
her telework days. Complainant failed to attend and S1 asked Complainant by email to explain
her failure to attend as instructed. S1 informed Complainant that her failure to respond could
result in disciplinary or corrective action. Complainant did not respond; however, no
disciplinary action was taken against her.

Complainant was recorded as being AWOL from April 11 to May 12, 2011, and ever since
July 17, 2011. After Complainant’s OWCP claim was denied, her COP leave was
retroactively disallowed. S1 explained to Complainant that she could substitute sick and/or
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annual leave for the period she had received COP benefits or she could reimburse the Agency
for the amounts she had been paid. Complainant did not respond to management’s repeated
requests to elect an option, and she did not submit a leave request of any nature. As a result,
the Agency placed Complainant on AWOL for the periods she was not working and on COP
status. The Agency was thus required to treat Complainant’s pay for that period as an
overpayment and the Agency’s payroll office began deducting the amount owed by
Complainant from her salary pursuant to the relevant laws and regulations.

Complainant had complained about eye irritation which she believed was caused by her
computer monitor. On March 30, 2011, S1 requested the Information Technology (IT)
department to provide Complainant with a replacement. On April 1, 2011, Complainant
submitted medical documentation in support of her request for an adjustment for her computer
monitor. On April 5, 2011, the IT department indicated that Complainant’s monitor was being
replaced. While the request was being completed, Complainant filed an on-the-job injury
claim and went out on COP leave. Subsequently, the IT technicians determined that the
department did not possess expertise to address Complainant’s computer monitor concerns.

On June 23, 2011, when Complainant returned to work, S1 met with her to further discuss her
computer monitor issue and an accommodation for her eye irritation concerns. S1 requested
that Complainant submit additional, more specific information about her computer monitor
requirements to evaluate and determine the exact type of monitor that would best be suited for
her needs. This information was necessary because the issue was beyond the expertise of the
IT department and it would need to acquire new equipment. Additionally, S1 arranged for
Complainant to work with a Safety and Ergonomic expert. Complainant did not submit the
requested documentation and failed to make an appointment with the Safety and Ergonomic
expert. Instead, Complainant continued to attempt to work with the IT department who were
unable to address Complainant’s needs.

On July 15, 2011, S1 again met with Complainant and provided her a memorandum which
included a detailed list of questions and job functions designed to determine the type of non-
standard computer monitor would be best suited for her eye-related concerns. Complainant
failed to respond to the memorandum. S1 offered to allow Complainant to use her laptop in
the office in lieu of using the computer monitor. Complainant rejected this proposal and only
suggested that the IT department solve her computer problems.

Complainant filed a formal complaint (and amended several times) alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(Caucasian), national origin (Hispanic), sex (female), disability, and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, she was
threatened with disciplinary actions on several occasions; she was informed that the Agency
did not respond to her Congressional Inquiry; her Family Medical Leave Act (FMLA) request
was denied and retroactively revoked; her Information Technology (IT) tickets were closed
without action; her request for a replacement of a computer monitor was denied; she was
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placed on absence without leave (AWOL); and she became aware that her gross pay is in a
negative balance.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on February 27, 2013.

In his decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. In addition, the AJ found that there was no
evidence that the conduct at issue was based on discriminatory or retaliatory animus. In
particular, as to her claim that she was threatened with discipline, S1 acted according to
Agency policy by informing Complainant that she would be charged AWOL if she could not
explain her absences on given days. Further, S1 advised Complainant that she could be
subjected to disciplinary measures if she did not adhere to her telework schedule and report to
work as scheduled. These actions were initiated pursuant to Agency policy. Regarding the
Congressional Inquiry, the AJ determined that the Agency received the Inquiry and processed
it. The AJ found that there was no evidence that Complainant suffered any harm.

With respect to her leave and pay shortage issues, the AJ found that the record showed that
Complainant was entitled to FMLA leave. The additional absences in question related to
Complainant’s on-the-job injury, her OWCP claim, and her election of COP leave. When
OWCP disapproved her claim, Complainant was informed that she could not retroactively use
FMLA leave without a showing that she was incapacitated. Complainant was then obliged to
either repay the Agency the amount of salary and benefits she received for the COP period in
question or convert her pay and leave status during the COP period to sick leave, annual leave,
or leave without pay. Complainant did not make an election; therefore, the Agency was
compelled to treat Complainant’s pay for the period in question as an overpayment which was
required to be repaid by the employee through salary reductions.

Finally, as to her accommodation claim, the AJ concluded that management engaged in good
faith efforts to accommodate Complainant’s needs. In March 2011, S1 directed that
Complainant’s computer monitor be replaced. On June 23, 2011, S1 met with Complainant
after she returned from an extended period of leave to discuss her eye-related concerns and the
inability of the IT department to address the issue. S1 requested that Complainant submit
additional information about her computer monitor requirements and medical documentation to

2 The Agency dismissed two additional claims as having been previously raised in a prior
complaint. In addition, the Agency dismissed age as a basis of discrimination as
Complainant’s age was not protected under the Age Discrimination in Employment Act of
1967. Complainant did not specifically raise any challenges to the dismissal of these claims
before the AJ or on appeal; therefore, the Commission will not address those claims in this
decision.
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evaluate and determine the type of non-standard monitor that would have to be procured. The
Agency needed the information because the issue was beyond the IT department’s expertise
and involved the requisition of a nonstandard piece of equipment. Further, S1 arranged for
Complainant to work with a Safety and Ergonomic expert. In response, Complainant failed or
refused to produce the requested medical information required to meet her specialized
equipment needs and failed or refused to meet with the Safety and Ergonomic expert. S1 met
with Complainant again in July 2011, and provided her a memorandum designed to elicit the
specific information needed to address Complainant’s eye-related concerns. Complainant
failed to respond to the memorandum. As an alternative, S1 proposed that Complainant use
her laptop computer in the office, a device which apparently did not generate the same kind of
problem. Complainant rejected this proposal. The evidence showed that Complainant did not
propose any other type of solution aside from suggesting that the IT department solve her
“computer problem.”

The AJ concluded that the Agency fulfilled its obligation to engage in the interactive process
with Complainant. Complainant failed or refused to provide the information requested, and
she offered no evidence that the information sought was unreasonable or not designed to meet
her physical needs. Moreover, Complainant’s proposal that the only acceptable
accommodation involved the intervention of the IT department was unreasonable because the
IT department did not possess the expertise to meet her needs. As a result, the AJ found that
the Agency had demonstrated its compliance with the Rehabilitation Act.

The AJ concluded that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment. The Agency subsequently issued a final order fully implementing the AJ’s
decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment.
Complainant argues that the Agency’s actions constituted unlawful harassment and that the
evidence shows that management’s reasons for its actions are pretextual. Complainant claims
that S1 was setting her up for constructive discharge by not addressing her computer monitor
issues. Complainant alleges that management’s actions towards her regarding her FMLA/COP
usage were not within the scope of their managerial duties. Complainant contends that the
evidence shows that management acted with discriminatory and retaliatory intent.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.
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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.

Hostile Work Environment

To establish a claim of harassment a 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 intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. For example, with regard to her
claim that she was threatened with discipline, S1 stated that she only inquired about
Complainant’s usage of leave for April 18 through April 26, 2011, and only warned
Complainant that she could face disciplinary action for her failure to report to the office as
scheduled on April 20, 2011. ROI, at 401. In addition, S1 asserted that she warned
Complainant that she could face disciplinary action if she failed to explain why she failed to
attend a training session remotely on July 14, 2011. Id. S1 noted that she did not take any
disciplinary action for any of the incidents. Id.

With respect to the Congressional Inquiry, S1 affirmed that she prepared a draft response
within a week of receiving it and provided it to the Regional Public Affairs Office on May 24,
2011. ROI, at 408. The record reveals that the Agency subsequently responded on August
22, 2011. Id. at 460, 556.

As to her FMLA and leave-related issues, the record confirms that Complainant was out from
April 11 through May 22, 2011, and she had submitted a workers’ compensation claim. ROI,
at 421-22. Complainant had requested COP for that period of time, which meant that if her
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claim was denied, she would be carried on sick or annual leave or the COP would be deemed
an overpayment. Id. at 422. S1 confirmed that she approved Complainant’s FMLA request
for June 23, 2011. ROI, at 409. Complainant’s workers’ compensation claim was
subsequently denied, and Complainant requested FMLA leave to cover the COP period of
time. Id. S1 informed Complainant that she could not retroactively apply FMLA leave to
those absences. Id. Additionally, Complainant did not indicate what kind of leave she wished
to cover her absences; therefore, Complainant was marked as AWOL for those absences. Id.
The Agency’s payroll system required that she pay back the money she was paid while on COP
leave; consequently, an indebtedness resulted. Id. S1 noted that the AWOL for the period
beginning July 17, 2011, was later changed to leave without pay because it was approved
FMLA leave. Id. at 421.

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown she was subjected to a hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency's explanation was pretext for discrimination or
reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment
decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.

Denial of Reasonable Accommodation

To the extent that Complainant claims that the Agency failed to reasonably accommodate her,
the Commission notes that that under the Commission's regulations, an agency is required to
make reasonable accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without
deciding that Complainant is a qualified individual with a disability.

The undisputed record shows that the Agency made numerous attempts to accommodate
Complainant. S1 had several discussions with Complainant soon after she returned in June
2011 to determine what type of monitor Complainant needed for her eye issues. ROI, at 415.
S1 requested more information from Complainant’s doctor to determine what type of non-
standard monitor she needed as the IT department was unable to resolve the situation;
however, Complainant failed to respond to the request. Id. S1 arranged for Complainant to
work with a Safety Specialist for an ergonomic study or for more information related to her
issues, but Complainant failed to make an appointment. Id. at 415-16. The IT department
tried additional measures, but S1 closed the help tickets after they were unsuccessful and had
no other options. Id. at 416. On July 15, 2011, S1 gave Complainant a memorandum to
provide to her doctor with a list of questions and Complainant’s job functions to gain
information about what type of monitor would address her concerns, but she never received a
response to the memorandum. Id. at 420. Complainant never provided a response to the
memorandum. Id.
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Under the Commission's guidelines, an agency may request additional information when
presented with a request for reasonable accommodation in order to evaluate a complainant's
proposed accommodation in comparison to her current medical needs in order to determine
what accommodation would best serve the needs of the agency and complainant. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002, at question 6 (Oct. 17, 2002).
Moreover, when an individual's disability or need for reasonable accommodation is not
obvious, and she fails to provide reasonable documentation requested by the employer, the
employer will not be held liable for failure to provide the requested accommodation. Id.
Here, the record shows that Complainant failed to respond to S1’s requests for additional,
more specific documentation to assist in addressing Complainant’s condition. Therefore, the
Commission finds that Complainant has not established that the Agency failed to provide her
with a reasonable accommodation.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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
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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 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

October 20, 2016
Date