0120162505
10-20-2016
Marybeth C.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marybeth C.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Health Resources and Services Administration),
Agency.
Appeal No. 0120162505
Agency No. HHS-HRSA-02442015
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's August 15, 2016 final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Specialist at the Agency's Office of Human Resources Operations in Rockville, Maryland.
On May 7, 2015, Complainant filed a formal EEO complaint alleging the Agency discriminated against her on the bases of disability and in reprisal for prior EEO activity when:
1. On February 11 and 13, 2015, Complainant's request for an interim reasonable accommodation of telework was denied.
2. Since February 13, 2015, Complainant has been subjected to a hostile work environment. Examples include the following:
a. her February 11 and 13, 2015 requests for an interim accommodation of telework were denied;
b. on February 17, 2015, the Agency changed her workload such that it doubled and became unmanageable;
c. on February 22, 2015, her duty hours were adjusted;
d. she was subjected to undue criticism regarding her work;
e. on March 2, 2015, Complainant's first level supervisor (Supervisor 1) informed Complainant that she would no longer accommodate her by collecting completed cases from the printer or accept emails or completed cases when she was teleworking;
f. Supervisor 1 insisted that Complainant use her annual leave to select an ergonomic chair that was being provided to her as part of her request for accommodation;
g. Supervisor 1 and Complainant's second level supervisor (Supervisor 2) have ignored her request for assistance with her significantly increased workload;
h. Supervisor 1 and Supervisor 2 unjustifiably scolded and belittled her in a March 17, 2015 conference call;
i. Supervisor 1 disparaged her to service people during conference calls;
j. Supervisor 2 falsely told her that a service person had complained that she turned assignments in late;
k. on April 29, 2015, the Agency required Complainant to come into the office despite failing to provide her with the particular ergonomic keyboard and chair necessary to accommodate her disability, and despite failing to move a cabinet from her work space that prevents her from sitting correctly;
l. in May 2015, when she returned to work, she found that the ergonomic chair requested was broken and she was issued the wrong keyboard; and
m. Supervisor 1 has denied her requests for increased amount of telework to four days per week.
3. On July 1, 2015, the Agency provided her with a written reprimand.
4. On July 1, 2015, the Agency informed her that because of the reprimand, she could no longer telework.
5. She has been frequently harassed regarding her performance and her leave. Specific examples include the following, but are not limited to:
a. on July 27, 2015, Supervisor 2 sent her a harassing and inaccurate email about her performance; and
b. on August 5, 2015, she was threatened with Absence Without Leave (AWOL) by Supervisor 1.
6. On August 5, 2015, she requested a reasonable accommodation to telework up to three days per week and her request was denied on October 8, 2015.
The record reflects that Complainant had been diagnosed with depression and anxiety Complainant also had bursitis in her hip, bilateral sacroiliac joint dysfunction, carpal tunnel, trigger finger, scoliosis, and had basal joint removal on each hand due to arthritics.
On March 17, 2016, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested an Agency final decision.
However, on July 21, 2016, Complainant, through her attorney, submitted a document entitled "Motion for Sanctions for Agency's Failure to Issue [Final Agency Decision]" to the Commission. Therein, Complainant requested that the Commission order the Agency to issue a FAD immediately and provide an explanation for its delay.
The record reflects that on August 15, 2016, the Agency issued the instant final decision, concluding that management violated the Rehabilitation Act with regard to its failure to reasonably accommodate Complainant's disabilities (allegations 4e, 4m, and 6). The Agency directed Complainant to provide documentation in support of her compensatory damage claim. With regard to the remaining allegations, including Complainant's hostile work environment claims, the Agency found no discrimination had been proven.
The instant appeal followed. Complainant submitted no argument on appeal.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that although the record contains a motion2 from Complainant's counsel issued prior to the issuance of the instant final decision, Complainant has raised no arguments after the issuance of the final decision regarding the claims where the Agency found no discrimination. We have carefully reviewed the investigative record and find that Agency management proffered legitimate, non-discriminatory reasons for the disputed actions, which Complainant failed to prove were pretext for discrimination based on her disability or retaliation for her prior EEO activity. To prove her harassment claims, 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 - in this case, her disabilities and/or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. A review of the record supports the Agency's conclusion that Complainant failed to meet this burden, with the exception of her reasonable accommodation claim.
The Agency has conceded that management violated the Rehabilitation Act when it delayed and ultimately denied Complainant reasonable accommodation for her disabilities, mainly surrounding the denial of her request for increased telework (allegations 4m and 6), 3 as well as her supervisor's interaction with her while she was teleworking (allegation 4e). We also find that allegation 4 is sufficiently related to the reasonable accommodation claims such that it should also be considered when determining Complainant's remedies.
Based on a thorough review of the record, we AFFIRM the Agency's August 15, 2016 final decision, and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to take the following remedial action:
1. Within fifteen (15) calendar days of the issuance of this decision, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. Within sixty (60) calendar days of the date the Agency receives Complainant's claim for compensatory damages, the Agency shall issue a final decision on Complainant's entitlement to compensatory damages in accordance with 29 C.F.R. � 1614.110.
2. The Agency shall restore Complainant's telework privileges as part of her reasonable accommodation for her disabilities. As telework is being granted as a disability accommodation, the Agency's policies and procedures for all employees concerning telework may not be applicable to her situation. The number of days Complainant is granted telework shall be determined based on Complainant's current need for accommodation and any undue hardship created for the Agency.
3. The Agency shall conduct at least eight (8) hours of EEO training for the supervisors who were found to have failed to provide Complainant with reasonable accommodation. The training shall address the supervisors' responsibilities under the Rehabilitation Act, with a special emphasis on handling reasonable accommodation requests.
4. If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency - not to the Equal Employment Opportunity Commission, Office of Federal Operations - within thirty (30) calendar days of this decision is issued The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Rockville, Maryland facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Complainants 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
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 That motion was rendered moot when the Agency issued its August 15, 2016 final decision. In light of the Agency's issuance of a final decision, and its discrimination finding regarding some of the subject claims, we find that the imposition of sanctions is a matter that need not be imposed in this particular instance.
3 We note that allegation 1 and 2a also involves a request for interim reasonable accommodation. However, the record supports the Agency's conclusion that this request for interim accommodation was granted by management in an agreement signed by Complainant on February 24, 2015. We also agree with the Agency's conclusions find that Complainant failed to prove allegations 2f, 2k and 2l occurred as she asserted
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