Mandy B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.Download PDFEqual Employment Opportunity CommissionMar 26, 20190120170313 (E.E.O.C. Mar. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mandy B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 0120170313 Hearing Nos. 570-2015-00380X, 570-2015-00948X Agency Nos. 20DR-0020-2014102284, 20DR-0020-2015100959 DECISION On October 25, 2016, 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 September 23, 2016, final decision concerning her equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are whether the Agency discriminated against, and subjected Complainant to a hostile work environment, based on her prior EEO activity, and whether the Agency discriminated against Complainant based on her disability when it failed to provide a reasonable accommodation. 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. 0120170313 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist/Team Lead at the Veterans Benefits Administration (VBA) Office of Diversity Management and Equal Employment Opportunity (DM&EEO) in Washington, D.C. Complainant’s supervisor (S1) (prior EEO activity, no disability) became the permanent Director of the Office of Management in November 2013; he had been acting in that position since June 2013. The DM&EEO Office falls under the supervision of the Office of Management. On December 3, 2013, S1 emailed his direct reports informing them that they no longer needed to designate a back-up to attend the management staff meetings in their absence. Report of Investigation (ROI) Vol. 1 at pg. 256. On December 13, 2013, S1 emailed his direct reports a list of expectations. For example, S1 stated that he expected all communications to be professional and respectful, and for employees to adhere to an approved telework schedule. ROI Vol. 1 at pgs. 396-397. On January 10, 2014, Complainant received the minutes from a management meeting during which S1 noted he found many issues regarding telework agreements, and that many of the agreements were no longer valid. ROI Vol. 2 at pgs. 278-279. On January 17, 2014, S1 met with the DM&EEO staff to introduce himself, and to learn more about their responsibilities.2 According to two witnesses, Complainant interrupted S1 to announce that she had prevailed on her earlier EEO case,3 and that S1 was no longer their supervisor. S1 replied that it was news to him and attempted to discuss other business. Complainant interrupted him again and stood to say that she would leave the meeting if S1 continued. Complainant sat down after S1 stated that he had other matters to discuss, besides supervision. Complainant’s behavior during the meeting was described as confrontational, disrespectful, and unprofessional. ROI Vol. 1 at pgs. 340-341. S1 followed up with an email message on January 30, 2014, informing the DM&EEO team that he would serve as their immediate supervisor. S1 stated that if anyone had any questions or concerns, they should express them “directly and privately to me.” Complainant responded to S1’s email, copying all the recipients of the original email. She noted that S1’s predecessor did not directly supervise the DM&EEO staff. Complainant also stated, “[f]or clarification, when we met yesterday you stated that General Counsel advised you to carry on with your plan to directly supervise rather than ‘management officials’ as stated below. Is it both?” ROI Vol. 1 at pgs. 337- 338. On February 10, 2014, S1 issued Complainant a Letter of Counseling for disrespectful and unprofessional conduct. S1 stated that Complainant’s conduct at the January 17, 2014, DM&EEO staff meeting was “intemperate and disruptive.” 2 In addition to Complainant, there were three other employees in DM&EEO at the time. 3 See Miriam B. v. Dept. of Veterans Affairs, EEOC Appeal No. 0720150022 (March 20, 2018). 0120170313 3 S1 also stated that despite his statement that the recipients of his January 30, 2014, email express any concerns directly and privately to him, Complainant replied-all, and S1 found her message “inappropriate for the audience.” Complainant declined to sign the letter. ROI Vol. 1 at pgs. 333- 334. On March 25, 2014, S1 emailed Complainant stating that he was contacted twice by an attorney at another federal agency regarding Complainant’s lack of response. S1 stated that if Complainant had any information to share, that he would appreciate discussing it in person. Complainant responded that she “no longer feel[s] safe meeting with you.” S1 invited Complainant to provide a written response, but also noted that there would be times when they need to “meet to conduct government business.” ROI Vol. 1 at pgs. 266-267. On March 31, 2014, Complainant sent an email to S1 requesting to telework the next day because she came into the office on two days when she was scheduled to telework. S1 responded that there was no provision for “in lieu of” telework days, and absent an emergent need, he was unable to approve her request. Complainant responded that she was requesting “ad hoc,” and not “in lieu of” telework because she was finalizing the Management Directive 715 (MD-715) report. S1 responded that Complainant’s request did not include sufficient information to substantiate either emergent work or unexpected circumstances to support her ad hoc telework request. ROI Vol. 1 at pgs. 343-345. On April 7, 2014, S1 sent Complainant an email stating that someone had notified him of Complainant’s proposed trip to New York for training. S1 informed Complainant that all travel requests were to be sent directly to him, and should include the proposed itinerary, agenda, purpose, goal, and any other relevant information. Complainant sent additional information to S1, who replied that she had not provided the itemized information for her travel request. S1 also stated that he did not believe that the proposed training was appropriate for the request and forwarded the information to the Office of Education Development and Training to recommend an appropriate course. ROI Vol. 1 at pgs. 347-349. S1 sent Complainant a meeting invitation to discuss her performance standards on April 24, 2014. S1 noted that since Complainant expressed feelings about being unsafe in meetings with him, he would arrange for a third party to be present at any meetings. S1 also reminded Complainant that her attendance was mandatory, and that failure to follow instructions could result in disciplinary action. Complainant responded that having an individual present on S1’s behalf, and not hers, was not equitable. ROI Vol. 1 at pgs. 277-278. The parties met, and S1 sent Complainant a meeting summary describing the various work-related topics they discussed. ROI Vol. 1 at pgs. 356-357. On April 23, 2014, S1 informed Complainant that the number of telework days would be reduced. ROI Vol. 1 at pg. 190. On May 15, 2014, Complainant emailed S1 stating that she was changing her tour of duty from 8:30a.m. to 6:00p.m., to 8:00a.m. to 5:30p.m. S1 responded that he would like to discuss Complainant’s request because he had concerns about her ability to maintain it and would send her a meeting invitation shortly. ROI Vol. 1 at pg. 360. 0120170313 4 On May 20, 2014, S1 sent a memo to the Veterans Health Administration (VHA) Equal Employment Opportunity/Affirmative Employment Office to request a Program Assessment of the VBA DM&EEO Program. S1 stated that his goal was to further enhance DM&EEO, and that the assessment would provide the foundation for effective program management and planning. ROI Vol. 1 at pgs. 296-297. On May 27, 2014, S1 emailed Complainant stating that he had sent her a meeting planner, and when she had not responded, he sent an assistant to contact her. S1 stated that he has authority to call a meeting with staff at any time, and that her attendance was mandatory. Complainant responded that meeting with S1 would put her health and safety at risk. Complainant stated that she experienced a severe headache and high blood-pressure, and that her doctor instructed her to refrain from stressful activities at work. Complainant confirmed that she would not attend the meeting. ROI Vol. 1 at pgs. 288-289. In June 2014, Complainant stated that S1 asked a DM&EEO staff member to provide him with a list of employees who filed EEO complaints. ROI Vol. 1 at pgs. 201-202. On June 5, 2014, Complainant emailed S1 stating that she faxed him a note from her physician and requested annual leave until her request for a reasonable accommodation was approved. She stated that her request was for 30 days of telework. ROI Vol. 1 at pg. 361. On June 20, 2014, S1 issued a decision denying Complainant’s request to telework for 30 days as an accommodation. Instead, Complainant was granted liberal use of sick or annual leave; or a change of her tour of duty to Monday through Friday, 8:30a.m. to 5:00p.m., with two days of telework per pay period.4 S1 stated that Complainant’s request for 30 days of telework would not be effective based upon the essential functions of Complainant’s position and would cause an undue hardship on the operations of DM&EEO. S1 noted that Complainant needs to be available on site to perform her functions as a Team Lead, and that he would need to take on her duties if she were not there. ROI Vol. 1 at pgs. 366-370. On June 27, 2014, Complainant requested a reconsideration of the denial of her requested reasonable accommodation from her second-line supervisor (S2) (no prior EEO activity, no disability). Complainant stated that DM&EEO had two senior EEO Specialists at the GS-13 level, who have extensive experience; and that their schedules are set so that one of the senior EEO Specialists was available in the office. Complainant also argued that because S1 is supervising DM&EEO, he would not be “forced” to take on Complainant’s duties because he was already performing these functions. On July 24, 2014, S2 issued her decision denying Complainant’s request, stating that the impact of her 30 days of telework would “cause an undue hardship on the operation of the organization including the impact on the ability of the other employees in the office to perform their duties.” ROI Vol. 1 at pgs. 371-377, 379-380. 4 Complainant worked a compressed schedule, with one telework day and one off-day each pay period. 0120170313 5 On July 31, 2014, S1 emailed Complainant a reprimand for conduct unbecoming a federal employee5 and failure to follow instructions. S1 noted that Complainant had missed a mandatory staff meeting; did not attend S1’s scheduled meeting to discuss her requested change in tour of duty; and refused to attend the May 27, 2014, meeting. S1 stated that he would have preferred to issue this correspondence in person, but Complainant was returning to duty on the same day that he started his annual leave. ROI at Vol. 1 pgs. 384-387. Also on July 31, 2014, S1 emailed Complainant a list of guidelines because he “observed a pattern of non-responsiveness” with respect to his emails and meeting invitations. S1 instructed her to respond to messages and meeting invitations from him or his immediate staff within two business hours, when she is on duty. Complainant responded that she “strongly disagree[d]” with S1’s claim that she was not responsive to his emails or meeting invitations. ROI Vol. 1 at pgs. 298-301. On October 17, 2014, the Deputy Assistant Secretary for Diversity and Inclusion sent an email stating that training staff members should coordinate with S1 to request or coordinate training with DM&EEO. ROI Vol. 2 at pg. 260. On October 20, 2014, in response to S1’s request, Complainant sent him a memo outlining a plan for interim coverage in preparation for a staff member’s pending retirement. Complainant listed how the retiring employee’s (RE) duties would be redistributed to the remaining DM&EEO team. ROI Vol. 2 at pgs. 276-277. On November 13, 2014, S2 denied Complainant’s grievance requesting the rescission of the July 31, 2014, reprimand. ROI Vol. 2 at pgs. 237-245. On December 19. 2014, S1 issued Complainant her fiscal year (FY) 2014 Performance Rating of Fully Successful. ROI Vol. 2 at pg. 225. EEO Complaints On July 2, 2014, Complainant filed an EEO complaint (Agency No. 20DR-0020-2014102284) alleging that the Agency discriminated against her, and subjected her to harassment, on the bases of race (African-American), disability (high blood pressure),6 and in reprisal for prior protected EEO activity arising under Title VII when: 1. in December 2013, S1 informed Complainant that only GS-14 level employees and above will attend the Office of Management staff meetings; 2. in January 2014, S1 instructed Complainant not to respond to his emails in writing; 5 Complainant was initially charged with “insolent conduct,” which was changed to “conduct unbecoming a federal employee” as a result of Complainant’s informal grievance. ROI Vol. 1 at pgs. 388-395. 6 Complainant alleged disability discrimination only for incidents 13-21. 0120170313 6 3. on January 20, 2014, S1 began directly supervising the DM&EEO staff, relieving Complainant from performing several of her duties;7 4. on February 10, 2014, S1 issued Complainant a Letter of Counseling; 5. on February 10, 2014, after Complainant refused to sign the Letter of Counseling, S1 started “flailing his arms,” raised his voice, and stated that the meeting was over; 6. on March 25, 2014, S1 informed Complainant that he received two complaints about Complainant failing to respond to telephone messages; 7. on March 31, 2014, S1 denied Complainant’s request for ad hoc telework on April 3, 2014; 8. on April 15, 2014, S1 denied Complainant’s travel request to conduct training; 9. on April 22, 2014, S1 threatened to issue Complainant disciplinary action if she refused to meet with him on April 24, 2014; 10. on April 23, 2014, Complainant attended a meeting with S1, and was not allowed to have her representative present; 11. on April 23, 2014, S1 informed Complainant that the number of telework days she and the DM&EEO staff members were allowed to work was being reduced, and that one of her staff members would not be able to have both a compressed work schedule and telework; 12. on May 15, 2014, S1 denied Complainant’s request to change her tour of duty; 13. on May 15, 2014, S1 requested a face-to-face meeting, which caused an exacerbation of Complainant’s medical condition, resulting in her taking two hours of annual leave, in lieu of sick leave; 14. on May 27, 2014, S1 requested a face-to-face meeting, which caused an exacerbation of Complainant’s medical condition, resulting in her taking annual leave, in lieu of sick leave, on May 30, 2014; 15. as a result of S1’s requests for face-to-face meetings, Complainant took leave on June 3, 2014, for a medical appointment, which resulted in Complainant taking annual leave, in lieu of sick leave, from June 5, through August 1, 2014; 16. on June 20, 2014, Complainant learned that her request for reasonable accommodation was denied; 17. on June 24, 2014, S1 began an assessment of Complainant’s EEO program, utilizing personnel from the VHA EEO Office, and the VBA Central Office Human Resources; 18. in June 2014, S1 obtained a copy of Complainant’s master list of employees who filed EEO complaints; 19. on June 27, 2014, Complainant learned that her request for reconsideration of her reasonable accommodation request was denied; 20. on July 31, 2014, S1 issued Complainant a Letter of Reprimand; and 21. on July 31, 2014, S1 sent Complainant an email outlining his expectations regarding leave request and use of the Outlook calendar. 7 On August 26, 2014, the Agency dismissed this claim as a discrete claim of discrimination due to untimely contact with an EEO counselor on March 26, 2014. However, this claim was considered as part of Complainant’s overall harassment allegation. 0120170313 7 On January 14, 2015, Complainant filed a second EEO complaint (Agency No. 20DR-0020- 2015100959) alleging that the Agency discriminated against, and subjected her to harassment, on the bases of race (African-American), religion (Christian), and in reprisal for prior protected EEO activity under Title VII when: 22. on November 11, 2014, S2 denied Complainant’s request to rescind her July 31, 2014, Letter of Reprimand; 23. on November 25, 2014, S1 removed Complainant’s duties as the point of contact for VBA EEO training requests; 24. on December 19, 2014, S1 lowered Complainant’s performance rating from Outstanding to Fully Successful for FY2014; and 25. on December 30, 2014, S1 assigned Complainant the duties of her former coworker for an indefinite period. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complaint 1 As an initial matter, the Agency concurred with the dismissal of claim 3 as an independently actionable claim of disparate treatment because Complainant did not raise it with an EEO counselor within 45-days but included it as part of Complainant’s overall harassment claim. The Agency assumed, for the purposes of the decision, that Complainant established a prima facie case of discrimination based on her race and religion; and that she was a qualified individual with a disability. The Agency determined that Complainant established a prima facie case of reprisal for her prior EEO activity for incidents 4, 7, 8, 11, 12, 16, 19, and 20.8 The Agency then found that management officials articulated legitimate, nondiscriminatory reasons for their actions. For claim 4, S1 stated that he issued the Letter of Counseling for disrespectful and unprofessional conduct during the January 17, 2014, meeting. He also stated that two witnesses provided statements describing Complainant’s behavior during the meeting. S1 stated that Complainant also failed to follow instructions when she emailed the entire team, despite his instruction to come to him directly with any questions or concerns. 8 The Agency determined that Complainant established a prima facie case of reprisal discrimination for claims 16 and 19. However, the Agency did not analyze these claims as disparate treatment claims of reprisal discrimination, but as a claim of failure to accommodate based on disability. 0120170313 8 With regards to incident 7, S1 stated that Complainant requested “in lieu of” telework, and that when he asked for additional information about her request, she did not substantiate her request. For claim 8, S1 denied Complainant’s travel request because she did not provide the requested information to support the training request. S1 added that travel was under “extreme scrutiny,” and that he needed to be careful when approving travel requests. S1 also stated that he did not believe that the identified training was appropriate for the needs of the requesting office. For claim 11, S1 stated that he learned that DM&EEO staff members were teleworking more days than was approved. S1 noted that their previous telework agreements gave the staff members one day of telework a month, and he increased it to one day per pay period. S1 stated that it was important to have DM&EEO staff members in the office to provide service to employees who come in with “emotional and very personal matters.” With regards to claim 12, S1 stated that he did not deny Complainant’s request to change her tour of duty. He stated that he wanted to discuss her request, but Complainant refused to meet with him. For claim 20, S1 stated that he issued the Reprimand to Complainant based on Complainant’s conduct and her failure to follow instructions when she refused to attend meetings. The Agency then found that Complainant had not shown that the reasons were pretext for discrimination. Complainant asserted that she should not have been charged with failure to follow instructions for refusing to attend meetings with S1 because of her medical condition. However, the Agency noted that even if an employee states that a disability is the cause of conduct problems, it may still discipline the employee for misconduct. Additionally, the Agency stated that the Rehabilitation Act does not require employers to excuse a violation of conduct standards that are job-related, and consistent with business necessity, as a reasonable accommodation. The Agency found that Complainant did not provide other testimonial or documentary evidence to support her assertion that the management’s reasons were pretext for discrimination. Accordingly, the Agency found that Complainant did not establish pretext for discrimination for claims 4, 7, 8, 11, 12, and 20. The Agency analyzed claims 16 and 19 as a failure to provide a reasonable accommodation based on disability. It presumed that Complainant was a qualified individual with a disability, who was entitled to an accommodation under the Rehabilitation Act. The Agency found that Complainant was provided a reasonable accommodation, just not the one that she preferred. The Agency noted that Complainant had not asserted that the alternate accommodations granted were ineffective to accommodate her disability. For Complainant’s harassment claim, the Agency excluded incidents 4, 7, 8, 11, 12, 16, 19, and 20 from its analysis because it had already determined that none of those actions were discriminatory or retaliatory. For the remaining incidents, the Agency found that the incidents were better characterized as common work-place disagreements between an employee and supervisor. 0120170313 9 The Agency determined that Complainant had not established that she was subjected to denigrating, offensive, abusive, or physically threatening conduct by S1; or that the incidents occurred due to her race, disability, religion, or protected EEO activity. Rather, the Agency found that several of the events occurred as a result of the business practices of a new supervisor. The Agency also found that the complained of conduct was not sufficiently severe or pervasive to constitute an objectively hostile work environment. Complaint 2 For claims 22 through 25, the Agency found that there was insufficient evidence to establish that similarly situated employees outside of Complainant’s protected bases of race, religion, and reprisal, were treated differently. Regardless, the Agency found that management officials provided legitimate, nondiscriminatory reasons for their actions. For claim 22, S2 stated that she requested an examination by a Grievance Examiner (GE), and accepted his recommendation to deny Complainant’s request to rescind the Reprimand. With regards to claim 23, S1 denied removing Complainant as the point of contact for EEO training. S1 stated that he instructed Complainant to inform him when she receives requests for services from DM&EEO. S1 added that he needed to know, and consent to, resources for which he is responsible. For claim 24, S1 stated that he did not “lower” Complainant’s performance rating. He explained that he rated Complainant Fully Successful based on her performance. With regards to claim 25, S1 stated that he asked Complainant to develop a plan to re-assign RE’s duties to the other DM&EEO staff members and followed her recommendations. S1 denied assigning all of RE’s duties to Complainant. In an effort to establish pretext, Complainant contends that she never received any type of discipline prior to her favorable decision for her earlier EEO complaint, which “fueled anger” in the management officials. However, the Agency found that Complainant had not shown that their explanations were pretext for discrimination. The Agency noted that a coworker provided a statement supporting Complainant’s allegations, but the Agency was not persuaded because the coworker provided only speculation, and not evidence, that S1 was motivated by Complainant’s race, religion, or protected activity. With regards to Complainant’s allegations that she was harassed when incidents 22 through 25 occurred, the Agency found that because it had already determined that the events were not motivated by unlawful discrimination, they were insufficient to rise to the level of discriminatory harassment. The Agency also noted that these events were more work-related disagreements between Complainant and her managers. The Agency concluded that Complainant had not established by a preponderance of the evidence that she was discriminated against, or subjected to harassment, based on her race, disability, religion, or in reprisal for her prior EEO activity. 0120170313 10 Complainant filed the instant appeal and submitted a brief in support of her appeal on December 22, 2016.9 The Agency did not file a response. CONTENTIONS ON APPEAL Complainant appeals the Agency’s decision in part and submitted new evidence with her appeal. Complainant argues that the Agency discriminated against, and harassed her, as retaliation for her prior EEO activity; and discriminated against her based on her disability when it failed to provide her with an effective accommodation. Complainant states that prior to the EEOC decision in her favor, she was not subjected to scrutiny and harassment. With regards to Complainant’s allegation that the Agency failed to provide a reasonable accommodation, Complainant argues that S1 did not contact her to initiate the interactive process, and that the Agency did not put forth a good faith attempt to meet with Complainant and explore alternative accommodations. Complainant also argues that S1’s concerns about Complainant’s absence and the additional duties he would have to assume were “implausible,” and that if she took leave, he would still have to assume her duties. Complainant asserts that with the two senior EEO Specialists in the office, Complainant’s telework would not alter the nature of DM&EEO’s operations. Complainant argues that her request to telework for 30 days was not costly, extensive, substantial, or disruptive; and would not have fundamentally altered the nature of operations of the Agency. For claim 3, Complainant argues that S1’s explanation that he removed her supervisory duties because they were not in her position description is inconsistent with S2’s statement. Specifically, Complainant notes that S1 stated that S2 was aware of, and concurred with, S1 directly supervising the members of DM&EEO. However, S2 stated that she was not involved in S1’s decision to supervise the DM&EEO employees and did not give S1 specific direction related to the supervision of any staff. With respect to claim 4, Complainant argues that S1 had two of his Program Analysts provide statements, but the two DM&EEO employees in attendance were not asked to provide statements. Complainant argues that these two witnesses would have corroborated Complainant’s account that she was not rude or unprofessional.10 9 Complainant requested, and was granted, an extension to file her statement through December 23, 2016. 10 On January 9, 2015, Complainant contacted the Office of Resolution Management to express dissatisfaction with her investigation because the investigator failed to interview her witnesses and did not include “material and reliable” documents into the record. The Agency responded that the investigator attempted to contact RE (the employee who retired in late 2014), who did not respond to his messages. Additionally, the Agency noted that an investigator has discretion not to seek testimony from witnesses that would be duplicative or corroborate facts not in dispute. The Agency 0120170313 11 For claim 7, Complainant states that she informed S1 that she needed to telework to finalize the MD-715 report, and he still denied her request. With respect to claim 8, Complainant claims that S1 denied Complainant’s requests to provide local training, and these requests did not involve travel. For claim 11, Complainant states that S1’s predecessor increased everyone’s telework but did not have the opportunity to update the telework agreements. With regards to claim 12, Complainant argues that S1 denied her request to change her tour of duty, and then intimidated her by scheduling a one-on-one meeting with her. For claims 20 and 22, Complainant alleges that GE’s review of her request for a rescission of her Reprimand was not neutral because GE acts on behalf of management and is under S2’s management chain. For claim 25, Complainant argues that she was performing the majority of RE’s duties. In addition to Complainant’s statement in support of her appeal, she submitted the following documents: A. Technical Assistance letters from the EEOC, dated September 6, 2005, and September 28, 2015; B. Organization Charts; C. Un-redacted medical documentation; D. The Agency’s Policy on processing requests for reasonable accommodation; and E. Complainant’s memo regarding her dissatisfaction with the investigation, and the Agency’s response. ANALYSIS AND FINDINGS 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”). As an initial matter, we note that Complainant has only appealed the Agency’s findings of no discrimination based on reprisal for her prior EEO activity for claims 3, 4, 7, 8, 11, 12, 20, 22, and 25; and failure to provide a reasonable accommodation based on disability (claims 16 and 19). added that because Complainant had requested a hearing, she should raise these issues with the EEOC AJ, who now had jurisdiction over Complainant’s complaint. 0120170313 12 For claim 3, we affirm the Agency’s dismissal as an independent claim of discrimination due to untimely contact with an EEO counselor. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should 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. 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. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). In this case, Complainant has not argued that the time limits should be extended for claim 3, and we affirm its dismissal as untimely. Accordingly, this decision will only address Complainant’s reprisal claims for incidents 4, 7, 8, 11, 12, 20, 22, and 25; and the failure to provide a reasonable accommodation claim. New Evidence Complainant provided additional documents as evidence with her appeal. As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). On appeal, Complainant provided documents related to her dissatisfaction with the Agency’s investigation. Specifically, Complainant stated that the investigator submitted a redacted copy of her medical documentation into the record. We find that Complainant has shown that she made a good faith effort to submit an un-redacted copy of her medical document, and that the Agency was unsure why it was redacted in the report of investigation.11 As such, we will consider the un-redacted medical document on appeal. However, for the remaining documents, Complainant has not made an affirmative showing that these documents should be considered, and we will not consider them on appeal. Pursuant to 29 C.F.R. § 1614.108(b), an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint and define an appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. However, the complainant is provided an opportunity to cure defects in an investigation, after reviewing the report of investigation by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an EEOC AJ. 11 We note that the first page of the two versions of the medical document look different because the redacted version is hand-written, while the un-redacted version is typed. However, both versions of the second page of the document appear to match. We will assume, for the purposes of this decision, that the information contained on the first page of both versions is identical. 0120170313 13 See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By choosing to withdraw her hearing request before an AJ, Complainant waived the opportunity to develop the record through discovery and to cross examine witnesses. See Tommy O. v. United States Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017). Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Reprisal 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. v. Green, 411 U.S. 792, 802 (1973)). 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), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, 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). In this case, we find that Complainant established a prima facie case of reprisal discrimination because S1 confirmed that he learned of Complainant’s EEO activity in December 2013, which was around the same time the complained of conduct began to occur. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, Sect. II.C (August 25, 2016) (“The causal link between the adverse action and the protected activity is often established by evidence that the adverse action occurred shortly after the plaintiff engaged in protected activity”) (citing, Ouiles-Ouiles v. Henderson, 439 F.3d 1, 8-9 (1st Cir. 2006) (concluding that jury could infer 0120170313 14 causation from evidence that harassment by supervisors intensified shortly after plaintiff filed an internal complaint)); see also, Clark County School District v. Breeden, 532 U.S. 268, 273 (2001) (noting that “very close” temporal proximity alone could be evidence of causality sufficient to establish a prima facie case). We also find that the management officials proffered legitimate, nondiscriminatory reasons for their actions. For claim 4, S1 stated that he issued a Letter of Counseling due to Complainant’s conduct at the January 17, 2014, staff meeting, and her January 31, 2014, email. With regards to claim 7, S1 stated that he denied Complainant’s request to telework because she did not provide “substantiation or circumstance” to support her request. For claim 8, S1 stated that despite repeated requests, Complainant did not provide the necessary information for her request to travel. For claim 11, S1 stated that the only telework notification memorandum he found was from March 2011, which provided one telework day per month; and that the employees were teleworking “far in excess” of the agreement. S1 stated that he asked each staff member for documentation to support their current telework schedules, and they were unable to do so. S1 updated the telework agreements and increased telework from one day per month to one day per pay period, effectively giving the employees two telework days per month. With regards to claim 12, S1 stated that he did not deny Complainant’s request to change her tour of duty but requested to meet with her to discuss his concerns. S1 stated that he did not understand why she needed to change her schedule to accommodate the 8:30 a.m. staff meeting because her start time was already 8:30 a.m., and she should already be at work in time for the meeting. S1 stated that he did not recall Complainant following up with him on this matter. For claim 20, S1 stated that he initially issued the Reprimand based on two instances of “insolent conduct,” and two instances of failure to follow instructions. S1 stated that upon receiving a response from Complainant, he changed the insolent conduct to conduct unbecoming a federal employee and removed one of the specifications. With regards to claim 22, S2 stated that she requested that GE review Complainant’s request to rescind the Reprimand to give her a better understanding and guidance on the situation. GE stated that he was an impartial finder of fact and did not represent labor or management. GE stated that after a complete review of the record, he recommended denying Complainant’s request. For claim 25, S1 denied assigning all of RE’s duties to Complainant. S1 stated that he requested that Complainant suggest a plan to equitably divide the work, and that the work was divided amongst the staff, in accordance with Complainant’s recommendations. We find that Complainant has not shown that the articulated reasons were pretext for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. On appeal, Complainant makes bare assertions, which are insufficient to prove pretext. 0120170313 15 With regards to claim 4, Complainant argues that the Agency’s investigator did not contact a witness who could corroborate her assertion that she was not rude or unprofessional during the January 17, 2014, meeting.12 However, Complainant has not provided any statement from this witness showing that she would have testified as Complainant claims. For claim 7, Complainant argues that she informed S1 that she was requesting telework to focus on the MD-715 report. However, in her email to S1, she stated that she “came into the office to finalize the MD-715.” We find Complainant’s request confusing because she is stating that she needed to telework to focus on the MD-715 report, yet at the same time, she stated that she needed to come into the office to work on the report. We agree with S1 that Complainant did not adequately explain her need to telework to work on the MD-715 report. For claim 8, Complainant alleges that S1 denied training, some of which was local. However, she has not provided any evidence showing that S1 denied requests to provide training that did not involve travel. With regards to claim 11, Complainant alleges that S1’s predecessor increased the number of telework days, but did not update the telework agreements, and that S1 could have updated their agreements to incorporate the increase, but instead decreased the number of telework days. Here, Complainant only offers her opinion of what she believes S1 should have done and has not shown pretext for discrimination. For claim 12, Complainant argues that S1 denied her request to change her tour of duty time. However, the record shows that S1 wanted to discuss her request further, and Complainant would not meet with him. Complainant has not shown any evidence that S1 denied her request. Regarding claims 20 and 22, Complainant states that she could not meet with S1 because of her health concerns, and that GE was not neutral. However, we find that Complainant admitted that she refused to meet with S1 and has only made bare assertions that GE was not neutral. Complainant has not provided any evidence showing that GE was biased. For claim 25, Complainant argues that she was performing the majority of RE’s duties after he retired, and that S1 has not back-filled the position claiming that there was not enough work. The record contains Complainant’s response to S1’s request that she develop a plan to divide RE’s work upon his retirement. If Complainant was performing the majority of RE’s duties, it was based on her own plan, which S1 followed. We find that Complainant has not shown pretext for discrimination because she has not provided any evidence that the proffered reasons are unworthy of credence, or that unlawful discrimination more likely motivated her managers. Accordingly, we affirm the Agency’s final decision finding that the Agency did not discriminate against Complainant based on reprisal for incidents 4, 7, 8, 11, 12, 20, 22, and 25. 12 The record contains a brief statement from this witness who stated that she had no direct knowledge of any of the events in Complainant’s second EEO complaint. There is no statement from this witness regarding the events in Complainant’s first EEO complaint. 0120170313 16 Harassment As discussed above, we found that Complainant did not establish a case of reprisal discrimination for incidents 4, 7, 8, 11, 12, 20, 22, and 25. Further, we conclude that a case of harassment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected basis. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Failure to Provide Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant 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 a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). For the purposes of this decision, we will assume that Complainant is a qualified individual with a disability. However, we do not find that the Agency failed to provide her with a reasonable accommodation because Complainant has not shown how telework would effectively accommodate her medical condition. We note that a complainant has the burden to show a nexus between the disabling condition and the requested accommodation. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)). Complainant’s doctor noted that she is “unable to participate in meetings and direct contact with supervisor” due to her medical condition. Complainant has repeatedly refused to meet with S1 in person, even while coming into the office. Both parties established that they rarely met in person and Complainant and S1 generally communicated via email. Accordingly, we find that Complainant has not put forth evidence to demonstrate that she is unable to go to the office to work, nor has she linked that asserted inability to her medical condition. Therefore, she has not shown that telework would be an effective accommodation. We note that while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002). While Complainant would have preferred to telework, we find that she has not shown that it would be effective in accommodating her disability. 0120170313 17 Complainant argues that the Agency failed to contact her to initiate the interactive process. However, we note that Complainant was on leave during the processing of her reasonable accommodation request and was unavailable for the Agency to contact. In fact, Complainant emailed S1 stating that she would be on leave “until my [reasonable accommodation] request is approved.” ROI Vol. 1 at pg. 361. In her request for reconsideration of the denial of her reasonable accommodation request, Complainant argued that S1 “could have communicated” with her through email. ROI Vol. 1 at pg. 376. However, we note that Complainant did not provide S1 with an alternate email address, nor did she inform him that she would be checking her work email while on leave. Complainant further argues that failing to engage in the interactive process is a violation of the Rehabilitation Act and may create a liability for the Agency. However, the Commission has recognized that an agency’s failure to engage in the interactive process does not, in itself, constitute a violation of the Rehabilitation Act. See Pitts v. U.S. Postal Serv., EEOC Appeal No. 0120130039 (Mar. 13, 2013) (citing Doe v. Social Sec. Admin. Appeal No. 01A14791 (Feb. 21, 2003)). Liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. Id. Accordingly, the allegation that the Agency failed to properly engage in the interactive process, does not, by itself, demand a finding that Complainant was denied a reasonable accommodation. Rather, to establish a denial of a reasonable accommodation, Complainant must establish that the failure to engage in the interactive process resulted in the Agency’s failure to provide a reasonable accommodation. Id. In this case, Complainant did not show that the Agency’s failure to engage in the interactive process resulted in the Agency’s failure to provide a reasonable accommodation. Accordingly, we find that the Agency did not discriminate against Complainant based on disability when it allegedly failed to provide her with a reasonable accommodation. 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 finding that Complainant has not shown that the Agency discriminated against, or subjected her to a hostile work environment, based on reprisal; or that it failed to provide her with a reasonable accommodation based on her disability. 0120170313 18 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. 0120170313 19 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 March 26, 2019 Date Copy with citationCopy as parenthetical citation