[Redacted], Belia S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020000912 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belia S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2020000912 Agency No. HHS-FDACDER-107-18 DECISION On October 24, 2019, 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 24, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with § 29 C.F.R. 1614.405. BACKGROUND During the relevant time, Complainant worked as a Quality Assurance Specialist at the Agency’s Center for Drug Evaluation and Research, Office of Generic Drugs, Office of Regulatory Operations, Division of Quality Management Systems in Silver Spring, Maryland. Believing that she was subjected to unlawful discrimination based on her disabilities, Complainant filed a formal EEO complaint on July 26, 2018. Complainant alleged she was discriminated against when: 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. 2020000912 2 1. On June 25, 2018, she was constructively discharged when the Agency failed to properly process and approve any of her three requests for a reasonable accommodation: (a) On July 23, 2017, Complainant requested to return to work with ergonomic equipment and a flexible schedule, but the request was denied on October 21, 2017; (b) On September 1, 2017, Complainant requested telework as a reasonable accommodation, but the request was denied; (c) On January 18, 2018, Complainant requested reassignment as a reasonable accommodation, but the Agency did not respond. Complainant also alleged that, on multiple occasions Supervisory Regulatory Health Project Manager (hereinafter “Supervisor”) suggested that she pursue disability retirement or apply for social security instead of returning to work with accommodations. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency concluded that Complainant failed to prove that the Agency denied her a reasonable accommodation, subjected her to disparate treatment, or created a hostile work environment.2 The Agency considered whether Complainant was a “qualified individual with a disability” entitled to coverage under the Rehabilitation Act. Based on her diagnoses (Rheumatoid Arthritis, Fibromyalgia, Chronic Inflammation, Function Neurological Symptom Disorder, Panic Disorder, and Major Depressive Disorder), which cause issues with walking, blurred vision, chronic pain, swollen legs, aphasia, insomnia and anxiety, the Agency concluded that Complainant was disabled. Regarding whether Complainant was “qualified” for her Quality Assurance Specialist position, the Agency found that she did not demonstrate she was qualified for the essential functions without or without a reasonable accommodation. In particular, the Agency noted conflicting testimony from Supervisor and the Agency’s Occupational Physician Consultant. The Supervisor stated that Complainant met the education, skills, and experience requirements and could perform the essential functions with the accommodation provided. The Occupational Physician Consultant, from the Federal Occupational Health Service (FOH), however, believed that Complainant was “unable to work in any capacity.” 2 Initially, the Agency dismissed claims 1(a) and 1(b) for untimely EEO Counselor contact, but proceeded to analyze all the claims “in order to give Complainant every opportunity to present her case.” The Commission shall utilize its discretion in also considering the merits of these claims, without determining whether they were properly dismissed pursuant to 29 C.F.R. 1614.107(a)(2). 2020000912 3 Moreover, the Agency stated that Complainant did not identify any similarly situated individuals outside of her protected basis who were treated better than she was. Despite concluding that Complainant did not present a prima facie case, the Agency proceeded with its analysis. Regarding claim 1(a), Complainant July, 23, 2017 request for a reasonable accommodation in the form of adaptive equipment and a flexi-place schedule, the Agency found that FOH recommended that Complainant “not return to work until she was examined and cleared by a psychiatrist and clarifying information regarding her need for workplace accommodations was provided by an evaluating physician.” As for claim 2(a), the February 16, 2017 request, the Agency reasoned that Supervisor approved and granted the accommodations, including the following: three days of telework per week, sensory breaks, ergonomic work chair, additional training time for new duties, flexible start times, time for relaxation techniques, parking close to the building, and an office location close to restrooms and the elevator. Finally, regarding claim 1(c), the Agency reasoned that Supervisor attested that he never received Complainant’s request for a reassignment. Although Complainant challenged Supervisor’s testimony, that all the accommodations requested were approved, the Agency concluded that Complainant failed to substantiate any of her assertions. Specifically, the Agency noted that testimony from Complainant’s brother-in-law was irrelevant as he was not an Agency employee and was not a witness to any relevant actions. Complainant did not meet her burden, stated the Agency, and show that the Agency’s reasons were pretext for discrimination. Additionally, the Agency concluded that since Complainant relied upon the same events for the basis of her harassment claim, which were found to not be discriminatory, her hostile work environment claim “also necessarily fails.” While acknowledging that the events may have been “frustrating”, the Agency found that the record did not establish that they occurred as alleged and were not sufficiently severe or pervasive to create a hostile environment. Finally, with respect to the constructive discharge claim, the Agency simply noted that Complainant still worked for the Agency. According to the Agency, Complainant never submitted her resignation and “has an continues to be employed by the Agency. Complainant filed the instant appeal. Complainant argues that the Agency delayed and then denied her reasonable accommodation request, and then failed to look for a reassignment after the Agency was unable to provide her with a reasonable accommodation. While acknowledging that her requests were “partially granted in July 2018,” she contends that the Agency’s failure to grant all of them caused her to take FMLA leave from October 2018 until March 2019, when her disability retirement was approved. Further, Complainant reasons that when the Agency did not provide all of her requested accommodations, it was obligated to find her a suitable reassignment. 2020000912 4 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”). Reasonable Accommodation3 Under the Commission's regulations, federal agencies are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p); see Appendix. For purposes of analysis only, we assume, arguendo, without so finding, that Complainant is an individual with a disability entitled to coverage under the Rehabilitation Act. Assuming, for the purposes of analysis only, that Complainant is a qualified individual with a disability, she has not shown that the Agency violated the Rehabilitation Act by failing to provide her with a reasonable accommodation. Instead, the record reflects that the Agency engaged in the interactive process. Complainant cited several physical and mental impairments, as well as a lengthy list of requested accommodations, in her request. In response, Occupational Medicine Physician Consultants from the Federal Occupational Health office (FOH) reviewed Complainant’s request. They contacted some of Complainant’s physicians in an effort to ascertain if she was substantially limited in a major life activity and how that may impact her work. Particularly with respect to her initial request, the FOH consultant believed that there was a lack of supporting documents. Further, Complainant had only provided a release to gather information from her primary care physician, who stated that he had not seen her “since her acute incapacitation” and could not comment on her current symptoms and limitations. According to an FOH consultant, Complainant’s primary care physician recommended that Complainant not return to work until she was examined and cleared by a psychiatrist, who could also provide insight to appropriate accommodations. Consequently, FOH, and in turn the Agency, sought additional medical information from Complainant (i.e. access to her specialists). 3 We note that the Agency considered the complaint under a disparate treatment framework, when the claim should be analyzed as the alleged denial of a reasonable accommodation. 2020000912 5 This need for supplemental information was reiterated by the second FOH consultant, who considered her request in January 26, 2018, thereby indicating that Complainant had not provided the additional medical information in the months since the initial review of her request. Further, the existing records contained conflicting information regarding Complainant ability to even return to work. When disclosures were authorized for Complainant’s specialists, the third FOH consultant4 noted that her requested accommodations were consistent with her diagnoses and “may allow her to perform the essential functions…” but, this would depend on “how much her mental health conditions have improved.” We find that the instant record, including affidavits from the three reviewing FOH consultants, does not reveal unnecessary or unreasonable delay in processing and granting Complainant’s reasonable accommodation request as alleged. Further, we note that Complainant repeatedly contends that she was denied a reasonable accommodation. However, the record shows otherwise. In its July 17, 2018 decision on Complainant’s reasonable accommodation request, the Agency provided a detailed response to each of the accommodations Complainant identified. For example, regarding the request for full-time telework or a flexible work schedule, the Agency proposed three days per week of telework, because she had been cleared to return to work. Additionally, the Agency permitted her to vary her start and stop times, as long as core hours were worked. Regarding Complainant request for “organizational tools.” such as noise-cancelling headphones and writing grips, the Agency instructed Complainant to provide her specific needs as soon as possible. Similarly, Complainant was advised to contact the Occupational Health and Safety Manager to obtain an ergonomic chair. The Agency did decline to provide her with a new, private office, reasoning that her current office was located close to restrooms and elevators. In order to permit a space heater or fan, the Agency requested documentation from her treating physician. Complainant is reminded that she is not entitled to the reasonable accommodation of her choice, but to an effective accommodation. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Consequently, despite Complainant’s requests for a reassignment, here the Agency was not obligated to consider this as an accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.”); see also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997), at 16 (stating that “reassignment must be considered as a reasonable accommodation when accommodation in the present job would cause undue hardship or would not be possible”); cf. Workers' Compensation and Disabilities Guidance, at 14 (clarifying that an employer may not unilaterally reassign an employee with a disability-related occupational injury to a different position instead of first trying to accommodate the employee in the position s/he held at the time the injury occurred. 4 The third consultant attested that she began working on Complainant’s case in approximately February 2018. 2020000912 6 Therefore, contrary to Complainant’s assertions, she has not established that the Agency failed to meet its obligations under the Rehab Act by failed to provide a reasonable accommodation. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her age, disability, national origin or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. In the instant case, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Finally, with respect to Complainant’s constructive discharge claim, the Agency reasoned that she was unable to meet the elements of such a claim because she remains employed by the Agency. Management officials attested that they had not received any type of resignation from Complainant and Agency records indicate she is still an employee. On appeal, Complainant provides no evidence to the contrary. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination. 2020000912 7 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). 2020000912 8 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 9, 2021 Date