[Redacted], Anya V., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2019005461 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anya V.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005461 Hearing No. 550-2017-00167X Agency No. SF-16-0363-SSA DECISION On July 26, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), prior to the issuance of the Agency’s September 5, 2019, 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.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) erred in dismissing Complainant’s hearing request; (2) whether there are genuine issues of material fact; and (3) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, sex, disability, age, and/or reprisal. 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. 2019005461 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0962-7 Service Representative at the Agency’s Las Vegas, Nevada District Office. On March 20, 2016, Complainant was promoted to GS-8. Complainant’s first-line supervisor was an Operations Supervisor (S1), her second-line supervisor was the Assistant District Manager (S2), and her third-line supervisor was the District Manager (S3). Complainant is a female who was born in October 1971, and she identified her race as Pacific Islander/Samoan. Complainant stated that she filed an EEO complaint in May 2015, alleging discrimination based on age, disability, and reprisal. Complainant averred that her EEO complaint included an allegation that a coworker (C1) harassed her. Complainant alleged that her supervisor, S1, generally treated male employees better than female employees and that he made himself more approachable to younger employees. Complainant stated that S1 treated her differently based on her race, sex, disability, age, and prior protected EEO activity. According to Complainant, she has a physical disability, and her impairments include degenerative disc disease, spinal stenosis, herniated discs, and sciatica. Complainant stated that, as a result of her disability, she is limited in her ability to bend, lift, walk, and sit for long periods of time. According to Complainant, when she was hired by the Agency in March 2015, she requested an ergonomic workspace, the ability to periodically walk around and stretch to decompress the spine, and the ability to adjust her work schedule to attend medical appointments as a reasonable accommodation. Complainant stated that she was provided with an ergonomic chair, keyboard, and mouse and with a standalone printer. Complainant averred that, in addition to ergonomic equipment at her main workstation, window 5 was set up with Complainant’s ergonomic equipment for when she needed to meet with the public and perform so-called “window duties.” On February 8, 2016, S1 issued Complainant a mid-year Performance Assessment and Communication System (PACS) performance review. According to Complainant, S1 included negative comments in three of the four elements. S1 stated that he incorporated the PACS review written by Complainant’s former supervisor (FS1) and added his own observations. According to S1, he rated Complainant fully successful, but he added guidance as to how Complainant could improve her performance before the end of the annual appraisal period. Under “Interpersonal Skills,” S1 stated that Complainant needed to improve her interpersonal skills, that her coworkers did not want to work with her, and that she alienated herself. S1 averred that Complainant’s coworkers had told him multiple times that they do not feel comfortable approaching Complainant and do not want to work with her. For the “Participation” element, S1 stated that Complainant did not adapt to change, that she did not promote teamwork, and that she went against new policies. According to S1, Complainant also does not adapt to change well and questions everything. S1 noted that the Service Representatives in Las Vegas answers the phones for the Bakersfield, California office, and the Bakersfield manager had asked that the Service Representatives send messages when they were leaving for lunch, to ensure phone coverage. 2019005461 3 S1 averred that Complainant was out of the office when the new policy was announced and that, when she returned, she expressed disagreement with the practice and would not inform others when she was leaving for lunch and when she had returned. Finally, under “Achieve Business Results,” the PACS review stated that Complainant never provided reasonable solutions. According to S1, this comment was made by FS1. Complainant alleged that S1’s comments were inaccurate, and she added that S1 had only become her supervisor at the end of 2015, so he had not had much time to observe her performance. S3 stated that he agreed with the mid-year PACS rating. According to S3, Complainant does need to work on her interpersonal skills, and Complainant often slowed down the office with complaints about work processes without offering any solutions to improve the processes. Complainant stated that S1 assigned her to work five straight days of telephone duties from February 17 through 23, 2016. According to Complainant, a coworker (C2) ran into her in the bathroom twice during this period and commented that Complainant was always on the phone. According to Complainant, C2’s comment amplified her perception that S1 was assigning her work differently than the way he assigned work to her coworkers. However, Complainant averred that phone duties are not undesirable. According to Complainant, on February 24, 2016, S1 scheduled Complainant to work at the reception window next to C1. Complainant alleged that the reception window does not have an ergonomic setup and that she would not be able to walk around and stretch if she was working at the reception window. Complainant stated that she had never been assigned to work from the reception window before February 24, 2016. Complainant averred that she had requested not to be seated next to C1. S1 stated that Complainant’s reasonable accommodation is that she will be provided an ergonomic workstation, not that she be excused from reception window duties. According to S1, however, he decided not to assign Complainant reception window duties. S1 averred that he mistakenly assigned Complainant to work the reception window on February 24, 2016, and he stated that he corrected the calendar when she pointed it out. S1 noted that Complainant was never required to work at the reception window. On February 26, 2016, Complainant asked S1 about the new policies that required employees assigned phone duties for Bakersfield to be signed in to instant messaging throughout their workday and to check in and out from their lunch break. According to Complainant, she had not heard about the new policies when initially announced, and she was trying to clarify the new requirements. Complainant stated that on February 26, 2016, she was on a call at her desk when S1 approached her in a hostile manner and hovered over her until she was off the phone. According to Complainant, when she was done with the call, S1 asked her why she did not want to follow directions. Complainant averred that she responded to S1 that she did not say that she would not follow instructions, but she did have questions about the new policy. Complainant alleged that S1 told her that he would no longer assign her telephone work for Bakersfield, walked away, and mumbled something that she could not hear. S1 stated that it is not uncommon for him to approach a Service Representative while she is on the phone. S1 denied that the conversation with Complainant was hostile, stating that he merely asked when she would be taking her lunch break so he could inform the Bakersfield manager. 2019005461 4 Complainant stated that she left work early on March 14, 2016, with S1’s permission to attend a physical therapy appointment. According to Complainant, S1 told her that her coworkers had complained that she had left early. Complainant averred that the surveillance was part of a pattern of harassment. On March 16, 2016, Complainant asked S1 if she could leave work early to attend a physical therapy session. According to Complainant, although S1 had routinely agreed to let her leave early to attend doctor’s appointments and therapy sessions in the past, on March 16, 2016, he told her that Service Representatives were required to work until 4:00 p.m. Complainant stated that S1 told her that she would no longer be allowed to leave work before 4:00 p.m. for medical appointments. Complainant averred that she emailed S1 and asked for a copy of the policy requiring her to work until 4:00 p.m. and that S1 responded that it was an informal office practice, not a written policy. Complainant stated that S1 told her that he would no longer allow her to take leave as needed for her medical appointments. S1 stated that he had told Complainant that he would let her leave work early to attend therapy or doctor’s appointments if there was adequate coverage in the office. According to S1, Complainant informed him on March 16, 2016, that she would need to leave early that day for an appointment. S1 stated that the issue was that Complainant was requesting leave at the last minute, on the day of an appointment she had known about. S1 denied telling Complainant that she could not attend the appointment that day or that she could not leave early for appointments in the future. S1 averred that he told Complainant that, as a Service Representative, she was expected to work until 4:30 p.m., and that he would no longer approve last-minute leave requests. On March 21, 2016, S1 emailed Complainant, stating that the shift for Service Representatives was 8:00 a.m. to 4:30 p.m. and that, if Complainant came to work early, the assumption would be that she planned to work credit hours. S1 added that, if Complainant needed to leave work early, she should follow the regular procedures for requesting leave. On March 21, 2016, Complainant responded to S1’s email, providing her understanding of a conversation she had with S1 earlier that day. Complainant stated that, by emailing S1 on the morning of March 21, 2016, to state that she needed to leave at 3:30 p.m. that afternoon for a physical therapy appointment, she had acted correctly and in accordance with S1’s directions. Complainant concluded, “If you do not agree with my understanding of the discussion please email me your understanding of the discussion if it is different than what I have above by the close of business day today, March 21, 2016.” Report of Investigation (ROI) at 256. On March 21, 2016, S1 responded to the email from Complainant and stated that any further communication would need to take place with the presence of a neutral third party. S1 stated that he sent the March 21, 2016, email because Complainant tended to twist his words and because a neutral third party would be able to corroborate what he had said. According to Complainant, after receiving the email from S1, she asked S3 how she was supposed to complete her work if she could not communicate as needed with her supervisor. Complainant averred that, on March 23, 2016, S1 apologized for the March 21 email and stated that she could bring her concerns to him. According to S1, he discussed the matter with S3 and apologized to Complainant, making clear that she could discuss anything with him. The record contains a March 23, 2016, email from S1, apologizing to Complainant and telling her that she should feel free to approach him with any concerns at any time. 2019005461 5 On May 12, 2016, S1 sent an email, stating that he was planning to implement a desk day for Service Representatives. In the email, S1 added that, if employees were absent on their scheduled desk day, he would try to reassign a different one, but the employees might lose their desk day. According to Complainant, she did not have a desk day at all during June or July 2016, and S1 did not offer her a make-up desk day for those months. Complainant stated that on June 16, 2016, she asked S1 about a schedule he had sent on June 13, 2016, that assigned Complainant to work five days in a row at the windows. According to Complainant, no other employee was scheduled to work five days in a row at the windows, and she was scheduled to work next to C1 for two of those days, June 22 and 27, 2016. Complainant asked if she could work the telephones on June 22 and 27, 2016, and S1 stated that he would schedule Complainant to work the telephones on those days. S1 stated that Complainant complained about being scheduled to work next to C1, but he denied that she complained about the number of days of window duties. According to S1, although he changed the schedule, so Complainant had telephone duties on the days she was scheduled to sit next to C1, he explained that he would not always be able to separate her from C1. S1 stated that he told Complainant that she did not need to speak to C1. According to Complainant, on June 22, 2016, she was still on the schedule to work at the window next to C1. Complainant stated that S1 stated that he forgot which days he had agreed to have her work the telephones and that he assigned her telephone duty. Complainant averred that she was also on the schedule to work at the window next to C1 on June 27, 2016. Complainant stated that S1 was not in the office on June 27, 2016, and that, when Complainant said that S1 had indicated that he would update the schedule to reflect telephone duties for that day, the acting supervisor assigned Complainant telephone duties. On July 11, 2016, S1 emailed some Service Representatives about a mandatory training that was taking place on July 13, 2016. Complainant replied to S1, asking if she could attend the training at another time. S1 asked Complainant to come speak with him, and he asked her why she did not want to attend the training. According to Complainant, she responded that it was not that she did not want to attend. Complainant stated that she explained that C1 was one of the Service Representatives on the email and that, because not everyone was expected to attend the training on that date, she wanted to know if she could attend at a different time. Complainant averred that S1 told her that C1 would not be at the meeting, so Complainant should not have a problem attending. Complainant alleged that S1 sent her an email after their discussion, which stated that management was not always able to accommodate employee preferences and that employees need to act in a professional manner. Complainant averred that her issue with C1 relates to concerns about her safety and that she interpreted S1’s email to mean that management would not take her safety concerns seriously. According to Complainant, on July 19, 2016, FS1 emailed her about work that had been assigned to Complainant and appeared late. Complainant stated that she had not been asked to work on this assignment and asked S1 about it. Complainant averred that S1 agreed that it was not in her list of assignments and directed her to add a “receive in date” to the assignment. 2019005461 6 Complainant stated that the assignment continued to show that it was late even after she added the receive in date. Complainant alleged that she asked FS1, her mentor (C3), and another coworker (C4), who all agreed that she should not have added a receive in date. Complainant averred that C3 and C4 showed her the proper steps. Complainant alleged that S1 intentionally instructed her to process the work incorrectly. Complainant alleged that S1 sent her an aggressive email on August 9, 2016, about her workload.2 According to Complainant, on July 30, 2016, she was looking at S1’s calendar with a coworker (C5). Complainant stated that C5 wanted to take a day off during a week in August in which there were already several requests for time off. Complainant averred that, when S1 returned to his desk, C5 asked if she could have a day off during that week in August. Complainant stated that S1 instantly agreed and wrote C5’s name on the calendar. Complainant alleged that, although S1 was willing to make a quick adjustment for C5, he gave Complainant a hard time when she requested days off or when she asked to work the phones on June 22 and 27, 2016. Complainant had reported harassment through the Agency’s anti-harassment program. Complainant averred that, on July 28, 2016, the Harassment Prevention Officer (HPO) emailed her to set up a time and date to conduct a phone interview and that she suggested August 2, 2016. According to Complainant, HPO sent her an email stating that she should ask management to excuse her for the time and date of the interview. Complainant stated that she sent a request to S3, who sent a negative response. Complainant alleged that S3’s response caused her to have a panic attack. The record contains S3’s July 28, 2016, email, which states, “Please make these requests through normal channels-that is, your supervisor, [S1].” ROI at 246. Complainant stated that HPO later contacted management on her behalf and that her request for an excused absence was approved. Complainant stated that S1 assigned her to answer the phone for Bakersfield on July 29, 2016. According to Complainant, she asked S1 if he wanted her to answer the phones for Bakersfield, and, when he said that he did, she reminded him that he stated in February 2016 that he would not schedule her to answer the phones for Bakersfield. Complainant averred that S1 later assigned her to answer the phones for North Las Vegas on that date. Complainant called in sick on August 3, 2016. According to Complainant, she spoke with S3 and requested leave without pay (LWOP) in lieu of sick leave. Complainant stated that, when she returned to work, S3 added a note to her time and attendance that stated that Complainant often used LWOP instead of annual leave. Complainant alleged that she is not required to use her annual leave before requesting LWOP. Complainant called in sick again on August 4, 2016, and she spoke with S1 and requested LWOP. Complainant averred that S1 responded that he would input LWOP for her. 2 The referenced email does not appear in the ROI, and the EEO investigator did not ask S1 about the email. 2019005461 7 According to Complainant, when she returned to work, she noticed that S1 had noted in her time and attendance that he had advised Complainant that regular use of LWOP could have a negative impact. Complainant alleged that S1 had not made this statement and that the note constituted harassment. Procedural History On May 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Pacific Islander/Samoan), sex (female), disability (physical), age (born in October 1971), and reprisal for prior protected EEO activity when: 1. On February 8, 2016, she received her mid-year PACS performance review, which contained inaccurate information regarding her performance; 2. On February 25, 2016, management violated her reasonable accommodation plan; and 3. Since March 2016, she was subjected to ongoing harassment in terms of working conditions, time and attendance, and assignment of duties. During the investigation of the complaint, Complainant objected to signing a medical release form to allow her medical documentation to be included in the report of investigation. ROI at 289-93. 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 AJ. Complainant requested a hearing. Complainant filed a motion to consolidate several EEO complaints. Pursuant to Complainant’s request, an AJ in the Commission’s Houston District Office consolidated the instant case with Agency No. SF-15-0987-SSA, Hearing No. 480-2016-00904X. The AJ denied Complainant’s request to consolidate two other cases because one was pending in the Commission’s Los Angeles District Office and because the Agency had not yet issued the report of investigation for the other case. On May 8, 2019, the Agency filed a motion for summary judgment on the two consolidated cases, Agency No. SF-15-0987-SSA, Hearing No. 480-2016-00904X and Agency No. SF-16- 0363-SSA, Hearing No. 550-2017-00167X. Complainant filed her opposition to the motion for summary judgment on May 24, 2019. On June 18, 2019, Complainant emailed the AJ, stating that she wished to withdraw her hearing request for Agency No. SF-18-0569-SSA, Hearing No. 550-2017-00167X. On July 24, 2019, the AJ held a teleconference to clarify Complainant’s intention, and at 4:07 p.m. on July 24, 2019, the AJ dismissed Agency No. SF-16-0363-SSA, Hearing No. 550-2017-00167X “pursuant to Complainant’s withdrawal of her hearing request.” At 4:23 p.m. on July 24, 2019, Complainant responded to the AJ, stating that she had not requested to withdraw Agency No. SF-16-0363- SSA, Hearing No. 550-2017-00167X. 2019005461 8 Complainant filed the instant appeal on July 26, 2019, contending that she had intended to withdraw her hearing request for Agency No. SF-18-0569-SSA, which she had been told was being processed under Hearing No. 550-2017-00167X. According to Complainant, she never intended to withdraw her hearing request for Agency No. SF-16-0363-SSA, Hearing No. 550- 2017-00167X. On August 8, 2019, the Agency’s representative submitted a letter to the Commission, stating that she participated in the teleconference with the AJ and Complainant and that, as she understood it, Complainant indicated during the teleconference that she wanted to continue with her consolidated cases, Hearing No. 480-2016-00904X and Hearing No. 550-2017-00167X.3 On September 5, 2019, 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 in Agency No. SF-16-0363-SSA. The Agency subsequently submitted a brief requesting that its September 5, 2019, final decision be affirmed. ANALYSIS AND FINDINGS AJ’s Dismissal of Complainant’s Hearing Request and Agency Motion for Summary Judgment Based on the record, including the Agency’s representative’s August 8, 2019, letter to the Commission, we find that the AJ erred in dismissing Complainant’s hearing request for Agency No. SF-16-0363-SSA, Hearing No. 550-2017-00167X. However, while the AJ erred in dismissing Complainant’s hearing request, we find that the AJ should have granted the Agency’s motion for a decision without a hearing. See Devon H. v. Dep’t of Agriculture, EEOC Appeal No. 2019006004 (June 23, 2020) (although AJ erred in dismissing complaint for untimely EEO counselor contact, AJ should have granted agency’s motion for summary judgment as there were no genuine issues of material fact); Fitch v. Social Sec. Admin., EEOC Appeal No. 0120083958 (June 14, 2012) (where AJ erroneously dismissed complaint for failure to state a claim, Commission found that summary judgment was appropriate and that complainant did not establish discrimination). The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 3 On October 9, 2019, the AJ granted the Agency’s motion for summary judgment in Agency No. SF-15-0987-SSA, Hearing No. 480-2016-00904X. 2019005461 9 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, in her opposition to the Agency’s motion for summary judgment, Complainant contended that summary judgment in favor of the Agency was inappropriate because she established that she was subjected to discrimination based on race, sex, disability, age, and reprisal. However, we find that Complainant has not identified any genuine issues of material fact that warrant a hearing. We will consider the merits of her complaint below. Disparate Treatment Complainant alleged that she was subjected to discrimination when S1 issued her a midyear PACS review that contained negative and inaccurate comments. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reasons for issuing Complainant the mid-year appraisal in question were that the mid-year review is an opportunity to provide feedback and identify areas for improvement and that, although her performance was generally successful, S1 and former supervisor FS1 suggested ways that Complainant could improve in her interactions with her coworkers and in communicating. 2019005461 10 As evidence of pretext, Complainant alleged that S1 should not have been involved in the mid- year appraisal because he was only her supervisor for part of the time covered by the mid-year appraisal. However, the record reflects that S1 incorporated FS1’s evaluation and comments that he prepared before S1 took over as Complainant’s supervisor. Complainant also generally alleged that the comments suggesting areas for improvement were false, but this general assertion does not establish that the Agency’s legitimate, nondiscriminatory reasons were pretextual. Upon review, we find that Complainant has not established by preponderant evidence in the record that the Agency’s proffered legitimate, nondiscriminatory explanation was a pretext designed to mask unlawful discrimination. Denial of Reasonable Accommodation Complainant alleged that she was denied a reasonable accommodation for her disability when S1 scheduled her to work at the reception window in February 2016. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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 term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). According to Complainant, assigning her to work at the reception window constituted a denial of a reasonable accommodation because the reception window is not set up with her needed ergonomic equipment and because sitting at the reception window would make it harder for to periodically take breaks to stand up and stretch. Here, the preponderance of the evidence reflects that S1 promptly corrected the scheduling error when Complainant showed him that he had scheduled her to work at the reception window. The record further reflects that Complainant was not required to work at the reception window and did not work at the reception window during the time frame of the complaint. Accordingly, we find that Complainant has not established that she was denied a reasonable accommodation as alleged. Harassment Complainant alleged that she was subjected to harassment when management gave her unfair assignments, communicated with her in a hostile manner, and interfered with her ability to take leave for medical appointments. 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 2019005461 11 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 at II.B (Aug. 25, 2016). Upon review, we find that Complainant has not established that the alleged harassment is sufficiently severe or pervasive to constitute a hostile work environment or that the alleged harassment is reasonably likely to deter a reasonable employee from engaging in protected activity. The alleged harassment consists of ordinary supervisory oversight, such as S1 assigning work, asking Complainant to check in before taking a lunch break to ensure phone coverage, and asking her to request leave for planned medical appointments in accordance with leave procedures. Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). What this means in practical terms is that routine work assignments, instructions, and admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial epithet or otherwise engender a hostile work environment. Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). We find that Complainant has not established by the preponderance of the evidence in the record that she was subjected to unlawful harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the issuance of a decision without a hearing was appropriate because there is no genuine issue of material fact and that the preponderance of the evidence in the record does not establish that Complainant was subjected to discrimination. 2019005461 12 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2019005461 13 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 January 8, 2021 Date